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PROCEEDINGS AND DEBATES 



OF THE 



CONSTITUTIONAL 
CONVENTION 



OF IDAHO 
1889 



Edited and Annotated by 

I. W. Hart 

Clerk of the 
Supreme Court of Idaho 



VOLUME I. 



CALDWELL, IDAHO 

CAXTON PRINTERS, LTD. 

1912 



Copyright, 1912 

by i. w. hart 

(For the benefit of the State of Idaho). 



PREFACE. 



The publication of the Proceedings of the Consti- 
tutional Convention of 1889 is made under authority of 
the Act of March 10, 1911, (Sess. Laws 1911, p. 686) 
which contained an appropriation of $5,000 to complete 
the transcription of the stenographic notes of the pro- 
ceedings, to properly annotate, index and prepare the 
same for publication, and for the publication itself. 

All the proceedings of the convention were reported 
stenographically at the time by a very competent re- 
porter, whose notes by order of the convention were 
filed with the secretary of the territory, but no provis- 
ion had ever been made for transcribing and publishing 
them before the passage of the act referred to. 

It has seemed fitting to insert as prefatory matter 
the calls or proclamations of the territorial governors 
for the election of delegates to the convention and the 
convening thereof, as these calls constituted the only 
official warrant for the holding of the convention, which 
met and performed its labors without either an enabling 
act of congress or any authorization from the territorial 
legislature. The call of Gov. E. A. Stevenson was dated 
April 2, 1889. Almost immediately thereafter Gov. 
Stevenson went out of office and was succeeded by Gov. 
Geo. L. Shoup, whose more elaborate proclamation, 
dated May 11, 1889, appears to have been in the nature 
of a confirmation of the act of his predecessor, as w r ell 
as being designed to stimulate popular interest in the 
movement for statehood. 

The absence of an enabling act placed the consti- 
tution makers of Idaho, as well as those of Wyoming, in 
a peculiar position, and one much more uncertain than 
those of other western territories which were engaged 
in framing constitutions about the some time. The 
Dakotas, Montana and Washington were proceeding in 



orderly fashion under the specific authority of a con- 
gressional enabling act. It is true that an enabling act 
for Idaho had been introduced by Senator Mitchell in 
December, 1888, and this was favorably reported to the 
senate in February, 1889, by Senator Piatt. The con- 
tents of this bill were well known to the members of 
the convention, were frequently referred to and quoted 
in debate, and there even seems to have been an impres- 
sion among some of the delegates that the bill had a 
certain legal force and effect at that time. On account 
of these numerous references and the historical interest 
attaching to the subject, it has seemed proper to include 
a copy of the Mitchell or Piatt bill among the appen- 
dices. 

There was one unfortunate omission in the matter 
of preserving the records of the convention which it 
has been impossible wholly to supply. In accordance 
with the usual practice in such bodies, the work of the 
convention was blocked out in its opening days, and the 
different subjects which were afterwards embraced in 
articles of the constitution were allotted to standing 
committees, each of which in due course reported to 
the convention an article with numbered sections for its 
consideration. There reports were ordered printed, and 
when the article came up for consideration in the com- 
mittee of the Whole a printed copy was laid on each 
member's desk, with the lines numbered, as in the case 
of legislative bills. Amendments were offered by refer- 
ence to the numbered lines. These printed copies were 
not preserved, nor does it appear that the originals 
were filed among the records of the convention. Exten- 
sive inquiry has been made among the living members of 
the convention, and it seems probable that there is not 
now a set of them in existence. The reporter did not 
ordinarily include them in his notes of the proceedings. 
In some instances it has been possible to supply parts of 
these original committee reports from other sources. 
A few of them were incorporated in the convention 
Journal, and a few scattered sections are to be found in 

IV. 



the files of the Idaho Daily Statesman. The references 
to numbered lines which appear in the proceedings do 
not therefore always afford a clue to the exact places 
where amendments are offered, though the reference is 
usually aided by the mention of specific words before 
or after which the change is sought to be made. 

I have also included in the appendices as relevant to 
the matter of this publication, the Address to the People, 
prepared by a committee of ten in the closing days of the 
convention, and the text of the constitution as finally 
adopted and engrossed. In accordance with the pro- 
visions of the act authorizing the publication of the 
proceedings, an endeavor has been made to trace every 
reference to other constitutions, statutes or court decis- 
ions. These citations appear in foot-notes, and are 
collected in an index at the close of Vol. II. In addi- 
tion to this and the general subject index I have pre- 
pared an index of sections and articles, for more con- 
venient reference when it is desired to ascertain all that 
was said and done in regard to any particular section. 

As entire sections were sometimes stricken from or 
added to the committee reports during the proceedings 
in committee of the Whole or convention, the section 
numbering in the articles as reported to the convention 
and as indicated in the reporters' notes, does not always 
correspond with the section numbering as adopted. 
Where this is the case, the original numbering is fol- 
lowed by figures in parenthesis which indicate the 
number of the section as it now stands. 

I. W. Hart, 
Editor and Annotator. 
Boise, June 10, 1912. 



V. 



CALL FOR CONSTITUTIONAL CONVENTION. 

Proclamation of Governor E. A. Stevenson. 

Executive Department, 
Boise City, Idaho, April 2, 1889. 

Whereas it is desirable that the Territory of Idaho be admit- 
ted into the Union as a State, and it has been clearly indicated 
by leading men of congress of both political parties that so soon 
as a suitable constitution is presented to Congress such admission 
will be granted: 

Now, therefore, I, E. A. Stevenson, governor of Idaho Terri- 
tory, fully recognizing the great advantages which statehood will 
confer, and in accordance with the fully expressed wishes of the 
citizens of the Territory, do issue this, my proclamation, to the 
people thereof, and recommend to them that they take the neces- 
sary steps for such admission; that for this purpose they hold 
throughout this Territory, on the first Monday in June, A. D. 
1889, an election for delegates to a constitutional convention to 
convene at Boise City, in said Territory, at 12 o'clock noon, of 
the 4th day of July, A. D. 1889, for the purpose of framing a 
constitution for the State of Idaho; that such constitution, when 
so framed, be submitted for its adoption or rejection to a vote of 
the people at an election to be held throughout this Territory at a 
time hereafter to be provided for; and if adopted by the people 
at such election, to be then submitted to Congress for ratification, 
and the admission of this Territory as a State of the Union; that 
the qualifications of delegates to such convention shall be such as 
are now required by the laws of said Territory for members of 
the legislative assembly of said Territory, and said delegates must 
take the same oath of office required of such members; that the 
election provided for shall be conducted, the returns made, the 
results ascertained, certificates to persons elected be issued, and 
the qualifications for voters thereof shall be the same as now 
provided by the laws of said territory for general elections 
therein; that said constitutional convention shall be composed of 
seventy-two members, apportioned as follows, to-wit: 

Ada County, 9; Alturas, 6; Bear Lake, 1; Bingham, 7; 
Boise, 3; Cassia, 2; Custer, 4; Lemhi, 3; Idaho, 3; Latah, 6; 
Kootenai, 3; Nez Perce, 3; Oneida, 2; Owyhee, 3; Shoshone, 8; 
Washington, 3; Logan, 3; Elmore, 3. 

Done at Boise City, the capital of the Territory of Idaho, 
this 2d day of April, A. D. 1889. 

E. A. Stevenson, 

Governor. 
Attest: E. J. Curtis, 

[ seal ] . Secretary. 

VI. 



ADVANTAGES OF STATEHOOD FOR IDAHO — CONSTITUTIONAL CONVEN- 
TION. 

Proclamation of Governor George L. Shoup. 

Whereas the people of Idaho are now living under a form of 
territorial government little better than a colonial system under 
foreign rule, whereby they are debarred from participating in 
any election for President and Vice-President of the United States, 
have no vote in either house of Congress, and have no voice in 
the selection of the most important officers of the Territory, 
executive or judicial, and 

Whereas the people of Idaho are desirous of exercising the 
rights and privileges guaranteed to a free and loyal people 
under the Constitution of the United States, and to organize a 
State government preparatory to admission to the Federal Union, 
believing that they have sufficient population and wealth to 
justify such an undertaking, and 

Whereas Governor E. A. Stevenson did, on April 2, 1889, 
issue a proclamation calling for an election of delegates to a 
constitutional convention to be held in Boise City, Idaho, on 
July 4, 1889, to make a constitution for the State of Idaho, to 
be submitted to the people for adoption or rejection: 

Now, therefore, I, George L. Shoup, governor of Idaho, fully 
recognizing the advantages that statehood possesses over our 
present system of territorial government, do issue this, my proc- 
lamation, recommending that delegates be elected to said constitu- 
tional convention on the first Monday in June, as proclaimed in 
said call issued by Governor Stevenson. If for any reason the 
citizens of any county prefer to elect their delegates by some 
other equitable method, I am satisfied the delegates so chosen will 
be recognized and admitted to seats in the convention. The 
manner of choosing delegates is of less importance than that they 
should be representative men, of character and ability, whose 
work will be satisfactory to Congress and the people. 

Objection to statehood has been made by a few of our citi- 
zens on the ground that the cost of government will be greatly 
increased. There is this much of truth in the objection, that a 
State government sufficient in all its departments for the needs 
of a growing commonwealth, affording means for the prompt ad- 
ministration of justice in the courts, providing a teacher for every 
child of school age, and an asylum for every helpless, blind, dumb, 
or idiotic dependent, will cost more money than a government 
which delays justice, turns out the feeble to the charities of the 
world, and rears the young in ignorance. But every good thing 
is worth its cost, and no people ever bore just burdens with 
greater patience than the people of Idaho. 

A brief statement of facts in connection with this question 

VII. 



will be useful for reference. The general Government now pays 
for the salaries of the governor and secretary and certain other 
contingent expenses, including rent, $6,000 per year; for salaries 
of judges, $9,000; and for biennial expenses of the general assem- 
bly, including printing the laws and journals, $26,000. Reducing 
the latter item to an annual expense, we find the general Govern- 
ment paying for the support of Idaho the sum of $28,000 per 
year. The other Territorial expenses, met by our own tax-pay- 
ers, average annually the sum of $75,000. 

The Territory now pays in full the salaries of the following 
officers, to-wit : 

Attorney-general, comptroller, treasurer, superintendent of 
public instruction, employes of capitol building, directors and 
attaches of insane asylum, prison commissioners, librarian, a 
portion of the attaches of the legislative assembly, incidental 
expenses attendant on the same; and to each county attorney in 
the Territory $300 per annum. 

I note these facts, as it is supposed by many that some of 
the above-named officers are now paid by the general Government. 

As moderate as our tax rate now is, it is gradually reducing 
our territorial indebtedness. This is made apparent by the fact 
that the balance in the territorial treasury on February 9, 
1888, paid all outstanding warrants up to October 10, 1S87, 
while the money in the treasury February 9, 1889, paid all out- 
standing warrants up to December 31, 1888. In other words, 
the collections for the year ending February 9, 1889, paid the 
expenses of one year, two months and twenty days. 

The insignificance of the amount contributed by the general 
Government becomes more apparent if we include the amount 
paid by our citizens for county expenses. The amount stands: 

Annual county expenses $450,000 

Annual territorial expenses 103,000 

Total $553,000 

This sum is paid as follows: 

By the people of Idaho $525,000 

By the United States Government 28,000 

Total $553,000 

Referring again to the increased cost of the State govern- 
ment and admitting that there will be a moderate necessary in- 
crease of expenditure, attention is called to the generosity with 
which a great nation comes to the help of a young commonwealth. 
The magnificent dowry promised by Congress far outweighs all 
the direct loss of revenue from the Federal Treasury and all the 

VJIL 



reasonable increase of cost of state government. Under the bills 
unanimously reported by the .committees of both houses of Con- 
gress gifts to the proposed State of Idaho were provided as 
follows : 

Grants : Acres 

School Sections 16 and 36 2,840,000 

University grant 46,080 

Penitentiary lands 160 

Agricultural college lands y0,000 

Scientific School lands 100,000 

Normal School lands 100,000 

Charitable institutions 300,000 

Public buildings 32,000 

Total 3,508,240 

Deducting from this the lava beds and mountain lands which 
would naturally fall to our share, there would still remain 
3,000,000 acres of timber, plain and meadow lands, to the credit 
of statehood. If it were wise public policy to sell these lands at 
once in open market at their present value, we should enter upon 
statehood with the richest treasury west of the Mississippi. 

Look at this grant in detail. When these school lands shall 
have been sold in accordance with existing laws, our school taxes 
will be reduced to an inconsiderable rate. We have incorporated 
a territorial university and levied a special tax for its support; 
when the university grant is placed upon the market it is probable 
that this tax can be entirely remitted. Three other excellent edu- 
cational institutions can be based upon the grants for agricul- 
tural, scientific, and normal schools. We are paying $20,000 
annually for the support of an insane asylum; ultimately the 
Congressional grant may take this entirely off our hands. We 
are confronted with a debt on our capitol building of $80,000; 
the Congressional grant ought to pay every dollar of it. We 
are paying $20,000 per year for the support of territorial pris- 
oners — a sum which not only provides for our own prisoners, but 
for those of the United States as well. Congress proposes to 
spend $25,000 more on this prison, give us the entire property, 
and then pay us for boarding federal convicts. 

Out of a similar grant the State of Nevada has already 
realized $1,500,000, and yet has most of its lands unsold. The 
annual receipts now by the State of Nevada from the current 
sales of these lands is an amount equal to nearly double the pres- 
ent cost of supporting our entire territorial government. 

The lands included in the various grants to the State of 
Idaho are now worth not less than $3,750,000. Only 6 per 

IX, 



cent annual interest on this sum is $225,000 — three times our 
present territorial income. 

In addition to the foregoing grants of lands the State of 
Idaho will receive for school purposes 5 per cent of net proceeds 
of all public lands sold within the State by the general Govern- 
ment — a magnificent sum of itself. 

The assessment of real and personal property in the Territory 
has increased since 1878 at the rate of about $1,600,000 per 
annum. The increase of assessable property would be much 
more rapid under State government. I refer to this as an evi- 
dence that taxation need not be increased above the present levy 
to meet all the requirements of State government. 

One of the most serious hindrances to the progress of our 
Territory is what is known as the alien act of Congress, which is 
an effectual prohibition of the investment of foreign capital. An 
ineffectual attempt was made during the last Congress to repeal 
or modify this law, so that our people might be in some measure 
benefited by the large amount of money held by this class of 
capitalists, who are ready and anxious to invest large sums in 
the purchase and development of our mines. If Idaho shall be- 
come a State, this hindrance to our prosperity is at once removed, 
as this law only applies to Territories over which Congress has 
exclusive control. 

Whether statehood will bring even a temporary increase of 
taxation depends largely upon the judicious action of the consti- 
tutional convention. Into the details of their great work I cannot 
enter. It is for you to instruct your representatives in the 
principles of economy. 

The convention will undoubtedly fix its own per diem and 
mileage and that of its employes. Their certificates of service and 
expenditure will be filed with the territorial secretary, and 
Congress will doubtless follow its own precedents in providing 
for the payment thereof. 

In testimony whereof I have hereunto set my hand and 
caused to be affixed the great seal of the Territory. Done at 
Boise City, the capital of Idaho, this eleventh day of May, in 
the year of our Lord one thousand eight hundred and eighty- 
nine, and of the independence of the United States of America the 
one hundred and thirteenth. 

[seal]. George L. Shoup. 

By the Governor: 

Edward J. Curtis, 

Secretary of Idaho, 



X. 



PROCEEDINGS 

OF THE 

CONSTITUTIONAL CONVENTION 

Boise City, Idaho, July U, 1889, 12 A. M. 

FIRST DAY. 

GOVERNOR SHOUP in the Chair.— The convention 
will please come to order. Gentlemen, the hour has 
arrived under the call of Governor Stevenson for the 
formation of a constitution for the State of Idaho. What 
is your pleasure? 

TEMPORARY ORGANIZATION. 

A MEMBER. A short time ago the members of the 
convention were assembled in a caucus for the purpose 
of recommending officers for the temporary organization 
of the convention, and in pursuance of the expressed 
wish of that caucus, I now present the name of the Hon- 
orable John T. Morgan as temporary chairman of the 
convention. 

(Seconded). 

CHAIRMAN. Gentlemen, the Honorable John T. 
Morgan of Bingham, has been nominated as temporary 
president of this convention. Are there any further 
nominations? In the absence of rules, I will call the 
ayes and nays. As many of you as are of the opinion 
that John T. Morgan should be temporary president of 
this convention will say aye; those contrary, no. (Vote). 

The ayes have it. John T. Morgan is duly elected. 

Gentlemen of the convention, I have the pleasure of 
introducing to you the Honorable John T. Morgan of 



2 TEMPORARY ORGANIZATION 

Bingham, who has been duly elected temporary president 
of this convention. (Applause) . 

Mr. MORGAN. Gentlemen of the convention, I 
gratefully appreciate the great honor that you have con- 
ferred upon me in selecting me as temporary chairman 
of this convention, a body of men so distinguished as 
those who have been elected to form this constitution. 
I am not going to make a speech to this convention on its 
temporary organization. I have only this to say, that 
Governor Stevenson has issued a proclamation, calling 
upon this territory to select delegates to form a constitu- 
tion for the future state of Idaho. These delegates have 
been selected and are now here. This proclamation of 
Governor Stevenson has been supplemented by the proc- 
lamation of our present Governor, His Excellency, 
George L. Shoup. For the performance of the duties 
that devolve upon you, it becomes necessary now for us 
to make arrangements for the permanent organization. 
Gentlemen, I await the pleasure of this convention. 

A MEMBER. In order to complete the temporary 
organization, I now move that Mr. Reid of Nez Perce, 
be appointed temporary secretary of this vtonvention. 
(Seconded). 

CHAIRMAN. It is moved and seconded that Mr. 
Reid of Nez Perce be elected as temporary secretary of 
this convention. Are you ready for the question? 
(Vote) . 

The ayes have it. Mr. Reid is elected. 

Mr. HEYBURN. Mr. Chairman, in the temporary 
absence of Mr. Reid, I move that Mr. Standrod be selected 
as assistant secretary of this convention. (Seconded). 

CHAIRMAN. Gentlemen, it is moved and seconded 
that Mr. Standrod of Oneida County be elected as assist- 
ant secretary of the temporary organization. (Vote). 

The ayes have it, and Mr. Standrod is elected. 

Gentleman from CUSTER. I move that the con- 
vention be called by counties and that the delegates 
come forward and present their credentials at the secre- 
tary's table. (Seconded). 



TEMPORARY ORGANIZATION 3 

Gentleman from CASSIA. I think there are some 
delegates who have not their credentials with then*. 
I move that there be a committee appointed on creden- 
tials, to receive the credentials — that the chair appoint 
the committee. 

Gentleman from CUSTER. I have no objection; 
my object in making such a motion was this, 
that the committee on Credentials should go to the secre- 
tary's table to more readily read the credentials. (Vote) . 

The CHAIR. The ayes have it. The gentlemen will 
present their credentials. 

Gentleman from CASSIA. I move a recess for 
ten minutes to give time to get the credentials to- 
gether. (Seconded). 

CHAIRMAN. The motion was that the convention 
be called by counties. As the counties are called, the 
delegates will proceed to hand in their credentials. The 
secretary will proceed to call the gentlemen by counties. 

(The names of the counties called and credentials 
presented). 

Mr. HEYBURN. I move that a committee of nine 
be appointed on credentials. (Seconded). 

CHAIRMAN. It is moved and seconded that a com- 
mittee of nine be appointed on credentials. Are you 
ready for the question? (Vote). The ayes have it. 

A DELEGATE. How will you have the committee 
appointed ? 

Mr. HEYBURN. By the chair. 

The CHAIR. Gentlemen, the chair appoints the fol- 
lowing members of the convention as the committee on 
Credentials: W. B. Heyburn of Shoshone; W. H. Sav- 
idge of Bingham; J. H. Shoup of Custer; J. I. Crutcher 
of Ovvyhee; J. W. Poe of Nez Ferce, Frank P. Cavanah 
of Lemhi; D. W. Standrod of Oneida; W. C. B. Allen 
of Logan; Albert Hagan of Kootenai. 

Mr. CLAGGETT.— I am informed that there are a 
number of contests coming before us. Some between 
members of the same party, and I would like to suggest 
the following method of procedure, and that is, that as 



4 RECEPTION COMMITTEE 

to contests between republicans, that the republican 
members by the consent of the committee shall settle 
such contests; and that as to democratic contests, the 
democrats shall settle the same. In other words, only 
republicans should mix up with the contests of repub- 
licans, and only democrats, in contests among the demo- 
crats. I offer the resolution: First, that in all contests 
for seats in the convention as between republicans and 
democrats, the whole committee on Credentials shall 
act upon the contests; Second, that all contests between 
republicans shall be settled by the republican members 
of the committee; Third, that all contests between demo- 
crats shall be settled by the democratic members of the 
committee, and when settled in this way, they can make 
their report out and the entire committee can report. 
(Seconded). 

CHAIRMAN. Gentlemen, you have heard the reso- 
lution. 

DELEGATE. I move the adoption of the resolu- 
tion. (Seconded). 

Question put and the resolution is adopted. 

RECEPTION COMMITTEE. 

Mr. SWEET. Mr. Chairman, I understand that the 
committee on Indian Affairs — or at least a portion of 
that committee — of the United States Senate will pass 
through Idaho tomorrow, and I desire to move that the 
chairman appoint a committee from this convention to 
go out and meet this committee from the Senate and en- 
deavor to pursuade them to spend one day with us as 
guests of this convention. I therefore move, Mr. Chair- 
man, the appointment of four of the delegates of this 
convention, and I suggest that the Governor act as the 
fifth member of that committee and act as chairman of 
the committee. (Seconded). Question put and motion 
carried. 

The CHAIR. The following members are appointed 
as this committee: Willis Sweet, William H. Claggett, 
Frank W. Beane, George Ainslie. 



TEMPORARY ATTACHES 5 

Mr. SWEET. I suppose it is understood that Gov- 
ernor Shoup will act as chairman ; he is here. 

The CHAIR. The chair so understood the resolu- 
tion. (After a pause). The Governor accepts. 

Gentleman from CASSIA. I move that the commit- 
tee on Credentials make a report. 

Gentleman from ALTURAS. I wish to make 
a motion, in order that you may have time to perform the 
duties devolving upon the committee, that the convention 
adjourn until tomorrow morning at ten o'clock. (Sec- 
onded). 

It is suggested to make it read that the hour be five 
o'clock this afternoon instead of tomorrow morning. I 
will make the motion in that form. 

TEMPORARY ATTACHES. 

CHAIRMAN. Gentlemen, it has been suggested that 
it would be necessary to have a doorkeeper before we 
adjourn. Of course, the motion to adjourn is in order. 

Gentleman from ALTURAS. I withdraw the 
motion. 

A MEMBER. It is very necessary that we have a 
page also, and that the chair appoint one temporarily. 

A MEMBER. I move that Bill Spiegel act as tem- 
porary page of this convention. (Seconded). 

The CHAIR. Gentlemen, you have heard the ques- 
tion. Are you ready for the question? (Question). 

A MEMBER. I offer the nomination of Alexander 
Smith of Ada County. 

A MEMBER. When I made the motion, i suggested 
only a temporary appointment. 

The CHAIR. What is the name of the gentleman 
suggested from Ada? 

Alexander Smith. 

A MEMBER. Mr. President, I understand these 
nominations are simply for temporary officers. 

CHAIRMAN. T so understand it. 

Mr. CLAGGETT. I rise to a point of order. It is 
not proper for this convention to do anything except per- 



6 COMMITTEE ON CREDENTIALS 

feet its organization, and then it can elect its officers. 
At the present time, we do not know who are members of 
this convention. I now rise to a point of order that 
there is nothing before the convention. 

The CHAIR. I think the point is well taken. 

A MEMBER. I would suggest that the janitor of 
the school building is here and that the chair appoint 
him temporary doorkeeper. (Seconded). Motion put 
and carried. 

The CHAIR. The gentleman is appointed. 

Gentleman from ALTURAS. There being no 
motion before the house, I now renew my motion to take 
a recess until 5 o'clock this afternoon. (Seconded). Mo- 
tion put and carried. 

A MEMBER. There is another motion in connection 
with this committee business that should be taken up. 

The CHAIR. The convention is adjourned. 
5 O'CLOCK P. M. 

COMMITTEE ON CREDENTIALS. 

The CHAIR. The convention will p]ease come to 
order. Is the committee on Credentials ready to report? 

Mr. HEYBURN. Your committee on Credentials is 
not ready to make its final report. They have finished 
their labors as to everything except any contest as to the 
democratic members from Alturas county, which is now 
under consideration with them. They will hardly be able 
to report before tomorrow morning. We therefore ask 
leave to postpone the report of the committee until to- 
morrow. 

The CHAIR. Does the convention grant further time 
until tomorrow morning? I await a motion. 

A MEMBER. I move that the committee be allowed 
until tomorrow morning at ten o'clock, until which time 
I move that the convention now adjourn. (Seconded). 
Motion put and carried. Adjourned. 



REPORT OF COMMITTEE ON CREDENTIALS 7 

SECOND DAY. 

July 5, 1889, 10:00 o'Clock A. M. 
REPORT OF COMMITTEE ON CREDENTIALS. 

The CHAIR. The convention will please come to 
order. I believe the first thing in order this morning is 
the report of the committee on Credentials. As I under- 
stand it, the committee is in the hall. We will await 
their coming in for a moment. 

(Enter committee on Credentials). 
The CHAIR. Gentlemen, the first business in order 
is the report of the committee on Credentials. Are you 
ready to report? 

Mr. HEYBURN. Your committee on Credentials beg 
to report that they find the following persons entitled to 
seats in this convention as delegates from the several 
counties of this Territory: 
Ada County, 
W. C. Maxey, 
John S. Gray, 
Edgar Wilson, 
John Lemp, 
A. B. Moss, 

Chas. A. Clark, Isaac N. Coston. 
P. J. Pefley, 
Frank Steunenberg. 
Alturas County, 
0. B. Batten, 
L. Vineyard, 
Patrick McMahon, 
Jas. H. Beatty, 
A. J. Pinkham, 
J. W. Ballentine. 
Boise County, 
J. H. Myer, 
Fred Campbell, 
Geo. Ainslie. 
Bear Lake, 

J. L. Underwood. 



REPORT OF COMMITTEE ON CREDENTIALS 

Bingham, 

W. H. Savidge. 

F. W. Beane, 
H. B. Kinport, 
J. T. Morgan, 
H. 0. Harkness. 

Logan County, 

J. S. Whitton, 

Henry Armstrong, 

W. C. B. Allen. 
Owyhee County, 

Samuel J. Pritchard, 

Chas. M. Hays, 

J. I. Crutcher. 
Shoshone County, 

W. B. Heyburn, 

W. H. Claggett, 

W. M. Hammell, 

S. S. Glidden, 

W. W. Woods, 

A. D. Bevan, 

Alex E. Mayhew, 

G. W. King. 
Kootenai County, 

Henry Melder, 

Albert Hagan, 

W. A. Hendryx. 
Washington County, 

Sol. Hasbrouck, 

E. S. Jewell, 

Frank Harris. 
Custer County, 

0. J. Salisbury, 

A. J. Pierce, 

A. J. Crook, 

James M. Shoup. 
Cassia County, 

H. S. Hampton, 

J. W. Lamoreaux. 



REPORT OF COMMITTEE ON CREDENTIALS £ 

Elmore County, 

Frank P. Cavanah, 
A. M. Sinnott, 
Homer Stull. 
Lemhi County, 
N. I. Andrews, 
Thos. Pyeatt, 
John Hogan. 
Nez Perce County, 
J. M. Howe, 
J. W. Reid, 
J. W. Poe. 
Latah County, 
Willis Sweet, 
W. J. McConnell, 
J. W. Brigham, 
W. D. Robbins, 
H. B. Blake, 
A. S. Chaney. 
Oneida County, 
D. W. Standrod, 
John Lewis. 

Respectfully submitted, 

W. B. Heyburn, 

Chairman. 
Your committee further begs to recommend to this 
convention that the Honorable E. A. Stevenson be ad- 
mitted as a delegate at large and as such be entitled to 
a seat in this convention. 

The CHAIR. Gentlemen, what will you do with the 
report? 

Mr. PINKHAM. I move that the report be received 
and adopted as read. (Seconded). 

The CHAIR. Gentlemen, you have heard the motion. 
Are you ready for the question? 

Mr. BEATTY. I move an amendment to that motion, 
to strike out the latter part of the motion, so that the 
report be simply received. I have a motion to make sup- 
plementary to that. I will state here my object in mak- 



10 REPORT OF COMMITTEE ON CREDENTIALS 

ing that amendment. I have been informed by a number 
of gentlemen in this place, in whom I have confidence, 
that if the committee in the case of the contest in Ada 
County will settle the number of members to be repre- 
sented from each party, that the delegations among them- 
selves could then very soon select the gentlemen of those 
delegations, and it is clear, as represented to me, that it 
will give more satisfaction to the members of the dif- 
ferent parties here. I will state, however, that they were 
lepublicans who so stated to me that it will give more 
satisfaction to the members of the republican party if 
the interested members who are selected as delegates be 
allowed to settle among themselves who shall represent 
them. If the committee on Credentials should fix the 
number five, they then could select the fiwe. I move that 
this committee be allowed an hour in which to settle this 
matter, and in the meantime, the report of the committee 
be simply received. (Seconded). 

The CHAIR. It is moved and seconded that the part 
of the motion relating to adopting the report be stricken 
out. You have heard the motion. Are you ready for the 
question ? 

Mr. CAVANAH. I would like to have that part read. 

The CHAIR. Will you read us the motion including 
your amendment, Mr. Beatty? 

Mr. BEATTY. The motion of my colleague here was 
simply that the report of the committee be received and 
adopted. My amendment is simply that the report of the 
committee be received and not adopted. That is all 
there is of it. The adoption may be acted upon later. It 
is not to set aside the report of the committee at all. If 
my colleague will accept the amendment, then the motion 
is simply this, that the report of the committee be re- 
ceived. It is then before the body for action. 

Mr. PINKHAM. With the consent of the chair, I 
have no objection to accepting the motion as amended by 
my colleague, but will stand upon that and let the motion 
go before the house in the way he presented it. 



REPORT OF COMMITTEE ON CREDENTIALS 11 

The CHAIR. As there is no objection to the amend- 
ment as adopted, gentlemen, are you ready for the ques- 
tion? The motion now is that the report of the commit- 
tee on Credentials be received. (Vote, and motion car- 
ried) . 

A MEMBER. I will move you, Sir, that the mem- 
bers selected from Ada County be allowed one hour in 
which to agree upon the names that shall be reported to 
this convention as the delegation. I understand the re- 
port of the committee presents the name of five repub- 
licans out of nine, and four democrats out of the nine to 
be selected from Ada county. I move now that the re- 
publican members be allowed one hour in which to select 
the five that shall represent them, and the democratic 
members of the delegation be allowed the same time, if 
desired, for the same purpose. If at the end of that hour 
they have not agreed upon the names of the parties who 
shall act as delegates here, then the convention will sum- 
marily adopt the report of the committee. (Seconded). 

The CHAIR. Gentlemen, you have heard the motion. 
Are you ready for the question? (Question). Vote, and 
carried. 

The CHAIR. The motion is adopted. 

A MEMBER. As the gentlemen are permitted to 
have one hour in which to settle this matter, I now move 
this convention adjourn until 2 o'clock this afternoon. 
My object is this: That both parties, I think, have a de- 
sire to confer as to the officers that will proceed as per- 
manent officers of this body, and I do not know whether 
the republicans have determined upon the selection of 
their officers or not; the democrats have not got together 
and have made no selection as yet and they desire until 
two o'clock in which to agree among themselves as to 
whom they will place in nomination as officers of this 
body. That is the object of my motion. (Seconded). 

The CHAIR. It has been moved and seconded that 
we now adjourn until 2 o'clock this afternoon. (Vote). 

A division is called for. On rising vote, the motion 
is lost. 



12 REPORT OF COMMITTEE ON CREDENTIALS 

Mr. McCONNELL. I move you, sir, that this con- 
vention adopt the report of the committee on Credentials 
with the exception of that in regard to the contest from 
Ada County. (Seconded). 

The CHAIR. It is moved and seconded that the re- 
port of the committee on Credentials be adopted with the 
exception of that referring to Ada County. Is that cor- 
rect, Mr. McConnell? 

Mr. McCONNELL. Correct. 

The CHAIR. As many as are in favor of this motion, 
signify by saying aye; Mr. Heyburn, I beg pardon. I 
believe you rose before the question was put. With the 
permission of the house, we will hear from the chairman 
of the committee. 

Mr. HEYBURN. I move to amend the motion of the 
gentleman from Latah, including in the exception the 
resolution contained at the end of the report of the com- 
mittee, so that it will read that the report of the com- 
mittee be adopted except as to the delegates from Ada 
county. (The amendment is accepted). 

CHAIRMAN. Gentlemen, you have heard the mo- 
tion. As many as are in favor of the motion, signify it 
by- 
Mr. POE. Pardon me; that is a matter we have no 
opportunity to offer remarks upon. The gentleman has 
moved an amendment that all shall be adopted except 
that which refers to the delegation of Ada County and 
the resolution that is pending. 

The CHAIR. Yes, sir. 
' Mr. POE. The reason of that amendment I believe 
is that they confused the delegation of Ada County. The 
committee on Credentials do not so consider it. The 
committee on Credentials recommended the adoption of 
the resolution to the effect that Governor Stevenson be 
allowed to sit as delegate at large in this convention, not 
as a delegate from Ada County. The delegation from 
Ada County by the committee on Credentials has been 
settled, of course, subject to this body. They have made 
their selections as to the parties entitled to represent 



REPORT OF COMMITTEE ON CREDENTIALS 13 

Ada County in this convention. Now they recommend 
another party, irrespective of his count at the polls, as 
being a proper person for this convention to admit as a 
delegate at large, and I cannot conceive of the propriety 
of not adopting the report of the committee as to that 
resolution, simply as the report of the committee has 
raised the question, because there is no dispute — no con- 
test. This is a matter of Governor Stevenson — has noth- 
ing to do with the matter of the delegation of Ada 
County. 

The CHAIR. Are you ready for the question? Gen- 
tlemen, the question is upon the adoption of the report 
of the committee on Credentials with the exception of 
the Ada County delegation matter and the matter of the 
admission of Governor Stevenson. 

Mr. CLAGGETT. I offer as amendment to that reso- 
lution that the report of the committee on Credentials be 
read and passed upon by the convention, section by sec- 
tion. (Seconded). Put to vote and carried. 

The CHAIR. The amendment is adopted. The re- 
port will be read by sections. (Secretary reads the re- 
port as to Ada County). 

The CHAIR. Is that considered as one section of 
the report? 

Mr. Heyburn. That is one section. 

The CHAIR. Gentlemen, what will you do with this 
section of the report? 

A MEMBER. I move that it be accepted. 

Mr. BEATTY. That would be out of order. The 
convention has already acted on that, and the only way 
to get at that matter is a motion to reconsider. 

The CHAIR. I did not so understand it, Mr. Beatty. 

Mr. BEATTY. I understand that the convention re- 
ferred that matter, the Ada County delegation, to the 
delegation themselves, and gave them an hour to agree 
upon the five republicans and four democrats, and if 
they are not able to agree, the convention should act 
upon the matter at once. And that has been acted upon 
by the convention. Now, then, I say that the convention 



14 REPORT OF COMMITTEE ON CREDENTIALS 

cannot take that matter up by a new motion except by 
a motion to reconsider. The motion of Judge Claggett 
I do not understand goes to that point. If it does, it is 
out of order. I submit that to the chair. 

The CHAIR. The chair understands that differently 
from the gentleman. 

Mr. BEATTY. I understood the Judge to refer to 
the report of the committee of Ada County. That report 
of the committee has been referred to the members from 
Ada County. I think the reading of the names from Ada 
County is out of order and that report should come be- 
fore the convention with the exception of that from Ada 
County. 

The CHAIR. Gentlemen, the chair understands the 
matter in this way. The motion was made by Mr. Mc- 
Connell that the report of the committee be adopted with 
the exception of the Ada County matter. That was 
amended by the gentleman from Shoshone (Heyburn), 
which amendment was accepted by the member; that 
this motion included the resolution in reference to Gov- 
ernor Stevenson. While that was under discussion, the 
amendment was moved by Mr. Claggett as a substitute 
that the report be read by sections and passed upon in 
that way, and we have commenced the reading of the 
report of the committee by sections — have read the part 
in reference to Ada County, and that is now properly be- 
fore the house. 

A MEMBER. Mr. Chairman, what has been done 
to the amendment passed upon by this convention? 

The CHAIR. The amendment was adopted. 

Mr. POE. I think our minutes will show that the mo- 
tion in regard to Ada County was referred back to the 
committee on Credentials, and that you will call to mind 
that after that was done, a motion to adjourn until 2 
o'clock was lost. The object to adjourn was to enable 
the committee to act upon Ada County. Now our min- 
utes ought to show that and will, I think. iA call for 
the reading of the minutes). 

(Secretary refers to the minutes). 



REPORT OF COMMITTEE ON CREDENTIALS 15 

Mr. POE. Mr. Chairman, I move that this whole 
business in reference to the adoption of this report be 
tabled and that this convention adjourn one hour. (Sec- 
onded). Put to vote and carried. 

The CHAIR. The motion is carried. The house 
stands adjourned for one hour. (10:38 A. M.). 

AFTER RECESS. 

The CHAIR. The convention will please come to 
order. The chair has received a communication from the 
republican delegates of Ada county which will be placed 
before the convention. The secretary will read the com- 
munication. 

SECRETARY reads: 

To the Hon. John T. Morgan, 

President Constitutional Convention. 
Sir: — At a meeting of the delegates elected by 
the county of Ada to represent said county in the 
constitutional convention for Idaho Territory, 
held in Boise City on this 5th day of July, they 
agreed that the following named persons shall be 
seated in your convention: John S. Gray, John 
Lemp, Edgar Wilson, A. B. Moss, W. C. Maxey. 
Respectfully, 

Chas. H. Reid, 
Jonas Brown, 
D. P. B. Pride, 
Edgar Wilson, 
John S. Gray, 
John Lump, 
A. B. Moss. 
Mr. CLAGGETT. I move that the names of the 
gentlemen which have been read by the secretary be 
accepted as the Republican members of the Ada County 
delegation and that they be allowed seats upon the floor 
at once and entitled to all privileges. (Seconded). Put 
to vote and carried. 

The CHAIR. The ayes have it. The gentlemen are 
admitted. What is the further pleasure of the conven- 
tion? 



16 REPORT OF COMMITTEE ON CREDENTIALS 

Mr. GRAY. I suppose it is in order to take up the 
permanent organization. Now I will make a motion that 
there be a committee appointed on Permanent Organiza- 
tion. 

REPORT OF COMMITTEE ON CREDENTIALS. 

Mr. BEATTY. I think the first business before the 
convention is taking action on the report of the commit- 
tee on Credentials which has not yet been adopted, as I 
understand it. 

Mr. CLAGGETT. As I understand it, Mr. Chairman, 
that is the unfinished business of the convention which 
was only temporarily organized. It now stands on the 
motion made by myself that the convention act upon that 
report section by section. 

The CHAIR. Yes, sir. The secretary will please 
proceed with the reading of the report of the committee 
on Credentials. I believe that the action upon the Ada 
County delegation has not been had in full, and we will 
request the secretary to read the report of the committee 
as amended by accepting the names of the Republican 
members. 

Mr. BEATTY. I will ask if the Democratic dele- 
gates of Ada County have agreed. 

Mr. CAVANAH. I did not know that the Democratic 
delegates were dissatisfied with the names presented in 
the report. 

Mr. BEATTY. I move then the adoption of the re- 
port of the committee as to the Democratic members 
presented in the report. (Seconded). Put to vote and 
carried and the report is adopted. 

SECRETARY. In the original report, the name of 
Mr. Maxey does not appear. In whose place was he se- 
lected? 

A MEMBER. T. C. Catlin. 

(The remaining portions of the report of the com- 
mittee relative to delegates entitled to seats from the 
several counties are read in order and adopted without 
amendment) . 



PERMANENT ORGANIZATION 17 

SECRETARY. Shall I read the resolution of the 
committee at the end of the report? 

The CHAIR. Yes, sir. 

SECRETARY. (Reading). Your committee recom- 
mend that Ex-Governor E. A. Stevenson be admitted as 
a delegate at large and as such entitled to a seat and 
vote in this convention. 

Mr. CLAGGETT. I offer as a substitute for the last 
clause of this report the following: Resolved, That the 
freedom of the floor of the convention be and the same 
hereby is tendered to Governor Shoup and. Ex-Governor 
Stevenson as honorary members of the convention, in 
recognition of their eminent services in behalf of state 
government for Idaho; and that like compliment be and 
hereby is extended to the honorable Justices of the Su- 
preme Court. (Seconded). 

The CHAIR. The question is upon the adoption of 
the substitute. 

Put to vote and carried. 

The CHAIR. The substitute is adopted. What is 
the further pleasure of the convention? 

PERMANENT ORGANIZATION. 

Mr. HAMMELL. I now move the appointing of a 
committee of nine delegates to have charge of permanent 
organization. (Seconded). 

The CHAIR. Gentlemen, you have heard the mo- 
tion; are you ready for the question? 

Mr. SWEET. I do not know that I fully understand 
the meaning of this motion, but if I do, I hardly think 
it is in accordance with the order agreed upon or com- 
monly understood by members of the convention on both 
sides of the house. My understanding was that after 
the question of who is entitled to seats on this floor as 
members of the convention should be finally settled, that 
the respective parties were to go into caucus and ap- 
point committees on the question of permanent organiza- 
tion. Now, if this is intended for the same thing, well 
and good, but if it is not, I am opposed to it, because 



18 PERMANENT ORGANIZATION 

these names should be agreed upon in caucus; and be- 
sides, in that way you can leave each party to the selec- 
tion of its officers and that will be settled. 

Mr. BEANE. For the purpose of following out the 
program mentioned by Mr. Sweet, I move we adjourn 
until 3 o'clock for the purpose to enable the several com- 
mittees or caucuses both to get together and make these 
selections. (Seconded). 

The CHAIR. The motion to adjourn is in order. 

Put to vote and carried. Recess. 

3 o'Clock P. M., July 5, 1889. 

The CHAIR. The convention will please come to 
order. Gentlemen, as we have no order of business at 
present, I presume the first business before the conven- 
tion will be the election of permanent officers. I await 
a motion. 

GRAY. I nominate W. H. Claggett to be permanent 
president of this convention. 

The CHAIR. The motion should be to proceed to the 
election of permanent officers. 

Mr. BEVAN. I make that motion in order to pro- 
ceed to elect a permanent president of this convention. 
(Seconded). 

Put to vote and carried. 

The CHAIR. Mr. Judge Beatty, will you take the 
chair, please. 

Mr. MORGAN. I have the distinguished honor, Mr. 
Chairman and gentlemen of the convention, to place in 
nomination for president of this convention, a gentleman 
distinguished in the councils of the nation as well as 
distinguished in the councils of a sister territory, and 
latterly in our own territory. I am happy to say, Mr. 
Chairman, that he is a gentleman eminently qualified 
for the position for which I place him in nomination. I 
have the pleasure now to nominate the Honorable W. H. 
Claggett of northern Idaho as the permanent chairman 
of this convention. (Seconded), 



PERMANENT ORGANIZATION 19 

The CHAIR. The name of W. H. Claggett of North- 
ern Idaho is placed before this convention as president. 
Nominations are still in order. 

Mr. HEYBURN. I desire to especially second the 
nomination of Mr. Claggett as chairman of this conven- 
tion. I have the pleasure to live in the same jurisdiction 
and come from the same county and I can vouch for his 
ability to administer the duties pertaining to that office, 
and for the impartiality, wisdom and courtesy with which 
we may expect to be governed. 

The CHAIR. Gentlemen of the convention, are there 
any other nominations? The chair awaits the motions 
of the convention as to further proceeding. If there are 
no more nominations, the chair will announce that nomin- 
ations are now closed for president. What is the pleas- 
ure of the convention ? 

Mr. BALLENTINE. There being no opposition, I 
move that Mr. Claggett be elected president by acclama- 
tion. (Seconded). 

The CHAIR. Gentlemen, the motion now is that 
Honorable Wm. H. Claggett be elected as the permanent 
chairman of this convention by acclamation. (Vote). 
The motion prevails. The chair will appoint a committee 
to escort the Hon. W. H. Claggett to the chair, if there 
is no motion to that effect. 

Mr. MORGAN. Mr. Chairman, I move you that a 
committee of three be appointed to escort the Hon. W. H. 
Claggett to the chair. (Seconded). 

The motion is that a committee of three be appointed 
to escort the president, Wm. H. Claggett, to the chair. 
(Carried). The chair will appoint the Hon. John T. 
Morgan of Bingham county, Mr. Cavanah of Elmore 
county and Mr. Batten of Alturas county, to conduct the 
president-elect to the chair. 

Gentlemen, I have great pleasure in introducing to you 
your permanent president, the Honorable William H. 
Claggett of Northern Idaho. 

Mr. CLAGGETT. Gentlemen of the convention, tu 
say that I thank you most cordially and sincerely for the 



20 PERMANENT ORGANIZATION 

distinguished honor which you have seen fit to confer 
upon me, would express in but feeble terms the sense of 
honor and of responsibility which I feel on this occasion. 
We have been convened here by the proclamation of the 
then governor of the territory, Ex-Governor Stevenson, 
for the purpose of drafting a constitution which will 
serve as the organic law for the future state of Idaho. We 
have been delegated by our fellow citizens in various 
forms of procedure to appear here and perform that re- 
sponsible and important duty. Both parties of the terri- 
tory are nearly equally represented upon this floor. It 
is a matter of congratulation to the people of Idaho that 
the general sense of all the people of all portions of th£ 
territory has been that this should not be made a par- 
tisan but rather a patriotic organization of delegates. 
We will have, in the course of our discussions and of 
our proceedings, many questions, perhaps, upon which 
there will be radical differences of opinion. I trust 
for my own part that every member upon the floor of 
this convention will bear in mind at every stage in 
these proceedings the fundamental theory upon which 
we have been convened. 

We are here for the purpose of forming a state 
government, drafting a constitution which shall be its 
organic law. And at every stage of our proceedings, 
we should be controlled by three considerations. The 
first one is to adopt such an instrument as will meet 
with the approval of the people of the territory; sec- 
ondly, such an instrument as will meet with the ap- 
proval of the congress of the nation, and, thirdly, and 
more important than the other two combined, such an 
instrument as shall secure a proper distribution of the 
powers of state, and such an instrument as will secure 
in the future the utmost welfare and prosperity of th r 
people whom we are called upon to represent here. I 
believe, gentlemen of the convention, that the spirit 
that will infuse the proceedings of this convention from 
its beginning to the close, will be the spirit of harmony 



PERMANENT ORGANIZATION 21 

and of endeavor to do the best that in our power lies, 
for the promotion of the ends which we have in view. 

For myself, I can make but few pledges to the con- 
vention. It is so long since I have been a member of a 
deliberative body that for' some days, at least, you must 
not be surprised if I am rusty in the methods of proced- 
ure. That, at this time, is my misfortune. If it con- 
tinues, it will be my fault. I can only promise you one 
thing — that in these proceedings there will be no dis- 
tinction made between the members of this convention, 
but everything that shall be done will be done with per- 
fect and absolute impartiality as far as in my power to 
bestow. I will again thank you for the honor conferred 
upon me, and announce that as the convention is or- 
ganized by the election of a chairman, the next thing in 
order will be the election of a secretary. 

Mr. HAYS. I desire to place in nomination the 
name of a gentleman well qualified by experience to 
be permanent secretary of this convention, namely, 
Chas. H. Reed. 

The CHAIR. If the gentleman will allow me to 
recall my announcement, I will announce that the next 
thing in order is the election of a vice-president. 

Mr, POE. I have the honor to present to this con- 
vention for the office of vice-president, a gentleman 
whom I have known for something over a year, with 
whom I have been intimately associated, and who, 
though comparatively a newcomer into this territory, 
is pretty well known throughout the broad extent of 
this territory by reputation; a gentleman who has oc- 
cupied the honorable position of representative in con- 
gress; a gentleman who is well known for his honesty 
and integrity and his executive ability. I now place 
before this convention the name of Honorable James W. 
Reid of Nez Perce county as the nominee for vice-presi- 
dent of this convention. 

The CHAIR. The name of Hon. James W. Reid of 
Nez Perce has been placed in nomination for the posi- 
tion of vice-president of this convention. Are there any 



22 PERMANENT ORGANIZATION 

other nominations? If there are no further nomina- 
tions, gentlemen, the chair will announce that the nom- 
inations are closed. What is the further pleasure of the 
convention in regard to the nomination? 

A MEMBER. Mr. Chairman, I move you that the 
election of Mr. Reid be made by acclamation. (Sec- 
onded). Carried. 

The chair recognizes the gentleman from Owyhee. 

Gentleman from OWYHEE. If in order, I 
desire to place in nomination for permanent secretary 
of this convention, a gentleman with whom a large num- 
ber of the members of this convention are acquainted; 
a gentleman well qualified for the position by reason 
of his similar experience, namely, Mr. Chas. H. Reed, of 
this county. (Seconded). 

The CHAIR. Any further nominations, gentlemen, 
for the office of secretary? 

Mr. POE. I have the honor of presenting the name 
of that pioneer of this county who has acted in the ca- 
pacity of secretary of many of the legislative bodies 
that have met in this territory in days gone by, who is 
well known to be a gentleman in every respect and a 
gentleman that has no peers. He may have a peer, but 
no superiors for the position and office. His name is 
James H. Wickersham of Owyhee County. 

The CHAIR. James H. Wickersham is placed in 
nomination. Are there any further nominations, gen- 
tlemen? If there are no further nominations, the chair 
will declare the nominations closed. 

Mr. WILSON. Mr. President, I move that we elect 
by ballot. (Seconded). Carried. 

Election of secretary proceeds by ballot. 

The CHAIR. Total number of votes cast, gentle- 
men, 59, of which Mr. Hasbrouck received 2, Mr. Wick- 
ersham 22, and Mr. Reed 35. Mr. Reed having received 
a majority of the votes of the convention is permanent 
secretary of the convention. What is your further 
pleasure, gentlemen? 



PERMANENT ORGANIZATION 23 

Mr. HEYBURN. Mr. President, I desire to place 
in nomination as Sergeant-at-Arms for this convention, 
the name of Howard French. 

The CHAIR. The name of Mr. Howard French is 
placed in nomination for the office of sergeant at arms. 
Are there any further nominations? 

Mr. POE. I place in nomination for Sergeant-at- 
Arms John Bartlow. He is quite an able man — he is 
fully able to fill the position, I think, with honor to him- 
self and to this convention. I have known him in posi- 
tions of that kind in legislative bodies and know that he 
is a faithful man and that he performs his duty well. 

The CHAIR. The name of Mr. John Bartlow is 
placed in nomination. Are there any further nomina- 
tions? If there are no further nominations, the chair 
will declare that nominations are closed. Gentlemen, 
you will please prepare your ballots. (Election proceeds 
by ballot). 

Gentlemen, the total number of votes cast is 59, of 
which Mr. Bartlow receives 25, and Mr. Howard French 
34. Mr. French having received a majority of the 
votes of the convention is duly elected to the office of 
Sergeant-at-Arms. 

Gentleman from LATAH. The time has ar- 
rived to charge this committee which was to wait on 
the Senate committee on Indian Affairs, and I would 
suggest that the committee be excused. The chair is a 
member of that committee. 

Mr. SWEET. Mr. Chairman, I move that the con- 
vention adjourn until tomorrow morning at 10 o'clock. 
(Seconded). 

The CHAIR. It is moved and seconded, gentlemen. 
If you will allow me one moment. 

SECRETARY, Mr. REED. Certainly. 

The CHAIR. I will state in response to what was 
stated by the delegate from Latah, Mr. Sweet, that it 
would be impossible for me to go with that committee 
and with the consent of the gentlemen of the convention, 
I will appoint in my place Mr. W. G. McConnell. If 



24 PERMANENT ORGANIZATION 

there is no objection, gentlemen, it will be so ordered. 
There is no objection. It is moved and seconded that 
this convention do now adjourn until tomorrow morning 
at 10 o'clock. (Vote). The noes seem to have it. 

(A division is called for; rising vote shows ayes 30, 
nays 28). 

The CHAIR. The motion to adjourn, gentlemen, is 
carried. This convention is now adjourned until to- 
morrow morning at 10 o'clock. 



THIRD DAY. 

July 6, 10: 00 o'Clock A, M. 

The CHAIR. The convention will come to order. 
The secretary will call the roll of members and members 
answer to their names. 

SECRETARY. 19 members. 

The CHAIR. The convention consists of 72 mem- 
bers and therefore no quorum appears. We are unable 
to proceed except by unanimous consent. If no one 
raises the objection of there not being a quorum, to-wit, 
37 members, we will proceed to the business of the 
convention. I would suggest, however, that inasmuch 
as the organization is not complete that we should there- 
fore take a recess until a quorum appears, but take 
steps to secure their attendance. 

Mr. HEYBURN, I suggest that the sergeant-at- 
arms might call the attention of the members not pres- 
ent that the convention is in session. Possibly they 
are not aware of that fact. 

The CHAIR. The sergeant-at-arms will notify the 
members not present that the convention is in session. 

The CHAIR. Gentlemen of the convention, the chair 
is informed by the secretary that the minutes of yes- 
terday's proceedings have not yet been completely writ- 
ten up. We will, therefore, be compelled to delay the 
reading of the minutes until a later date. 



PERMANENT ORGANIZATION 25 

When the convention adjourned upon yesterday, it 
was engaged in the labor of perfecting its organization 
by the election of the various officers to attend upon the 
labors of the convention. That remains this morning 
as the unfinished order of business. It will now be in 
order to proceed to the perfection of the organization of 
the convention. What is your further pleasure in the 
premises, gentlemen? 

Mr. HARRIS. Mr. President, what is the next of- 
ficer on the list for election? There has been no list 
prepared by the action of the convention at all, and we 
are proceeding entirely in the dark. It is not as yet 
known as to whom the officers of the convention will be 
except the customary number, and it is assumed that 
there will be the customary attaches. There should be 
really some action taken by the convention designating 
what officers shall be selected by the convention, if it 
hasn't yet been done. 

Mr. BEATTY. Mr. President, I move that the con- 
vention proceed to elect the first and second assistant 
secretary and that the first thing be the election of the 
first assistant. (Seconded). Carried. 

The CHAIR. Nominations for the position of the 
first assistant secretary are now in order. 

Mr. SAVIDGE. Mr. Chairman, I desire to nomi- 
nate for the position of first assistant secretary of this 
convention, Mr. R. T. Morgan. I have a personal ac- 
quaintance with Mr. Morgan, and I believe him to be 
exceptionally qualified to perform the duties of 
that office. (Seconded). 

The CHAIR. The name of Mr. R. T. Morgan is 
before the convention for the position of first assistant 
secretary. Are there any further nominations? 

A MEMBER. I move the nominations be closed. 
The CHAIR. Is there any second? There being no 
second, nominations are still in order. 
Mr. BEATTY. Seconded. 



26 PERMANENT ORGANIZATION 

The CHAIR. It is moved and seconded, gentlemen, 
that the nominations now close. (Vote). The ayes 
have it. Are you ready to proceed with this election, 
gentlemen ? 

Mr. BALLENTINE. Mr. Chairman, there being no 
opposition to Mr. Morgan, I move that he be elected by 
acclamation. (Seconded). 

The CHAIR. It is moved and seconded that Mr. R. 
T. Morgan be elected by acclamation as first assistant 
secretary of this convention. (Vote). The ayes have 
it. Nominations are now in order for the position of 
second assistant secretary. 

GOV. SHOUP. I move you that the nomination be 
passed for the present. (Seconded). Carried. 

The CHAIR. What is the further pleasure of the 
convention ? 

Mr. ALLEN. Mr. Chairman, I desire to place in 
nomination for the position of chaplain of this conven- 
tion, the Rev. T. M. Smith of Logan, who, I believe, 
will fill the position acceptably. (Seconded). 

Mr. STEUNENBERG. Mr. Chairman, I desire to 
place in nomination a gentleman for the office of door- 
keeper. 

The CHAIR. The chair will have to rule that only 
one proposition can be entertained at a time. 

Are there any further nominations for the position 
of chaplain for the convention? No further nomina- 
tions, gentlemen; the chair will declare the nominations 
closed for this position. As there is no objection, it is 
so declared. 

Mr. McMAHON. Mr. Chairman, I move that the 
candidate be elected by acclamation. (Seconded). 

The CHAIR. It is moved and seconded that the 
Rev. T. M. Smith be elected to the position of chaplain 
of this convention. Carried. 

Mr. McCONNELL. I desire to place in nomination 
a candidate for doorkeeper, a gentleman whom you all 
know — a gentleman distinguished in letters and on the 
rostrum, who will be distinguished in the state of Idaho 



PERMANENT ORGANIZATION 27 



as long as the high stars shall shine. I name for the 
position Honorable J. D. Flenner. (Applause). (Sec- 
onded) . 

The CHAIR. Are there any further nominations, 
gentlemen? 

Mr. McMAHON. Mr. Chairman, I submit the name 
of P. D. Canavan, of Logan County. 

The CHAIR. Are there any further nominations, 
gentlemen? No further nominations; the chair will de- 
clare the nominations for the position of door-keeper 
closed. There is no objection; it is so ordered. Prepare 
your ballots, gentlemen. (Election by ballot). 

The total number of votes cast, gentlemen, is 34, of 
which number Mr. Flenner received 16 and Mr. Cana- 
van received 18. Mr. Canavan having received a ma- 
jority of the votes of the convention is duly elected door- 
keeper. What is the further pleasure of the conven- 
tion? 

Mr. HEYBURN. Mr. Chairman, inasmuch as it 
would be necessary that this hall be kept open at all 
hours in order for members to have free access to their 
desks, without being excluded on holidays and other 
days, it seems to me that it will be necessary to have an 
assistant door-keeper and it will also be necessary to 
have a postmaster to bring the mail to the desks and 
take the mail away. I name as door-keeper, W. R. 
Cartwright. (Seconded). 

The CHAIR. The name of W. R. Cartwright is 
placed in nomination for the position of assistant door- 
keeper and postmaster. Are there any further nomina- 
tions? 

Mr. MAYHEW. I just arrived last night and had 
no opportunity to ascertain anything except that the of- 
ficers of this convention were to be elected. Further 
than that I have had no opportunity to ascertain the 
facts or what officers it was necessary for this conven- 
tion to have. I would like to inquire, Mr. President, 
therefore, if there has been any rule or anything adopt- 
ed by way of resolution or otherwise as to what the of- 



28 PERMANENT ORGANIZATION 

ficers should be of this convention. Has there been no 
report of committee made? 

The CHAIR. The chair will inform the gentleman 
from Shoshone that there has been no action taken 
specifying any definite officers the convention should 
have. 

Mr. MAYHEW. Then a proposition, Mr. President, 
that we go right along and elect as many officers for 
this convention as we please is in order. 

The CHAIR. I don't think there is any doubt about 
that, Mr. Mayhew. 

Mr. MAYHEW. I did not know but what there 
might be some report made by some committee recom- 
mending the election of officers for this convention and 
made the suggestion in order to be informed. As to 
the postmaster and doorkeeper, heretofore in the bodies 
I have unfortunately been a member of, the doorkeeper 
acted as postmaster, etc. I only wanted to know for 
information's sake so as to know how to vote upon this 
matter. Always heretofore it has. been reported by 
some committee who named the officers. 

The CHAIR. The customary method of procedure 
has been as stated by the member from Shoshone. The 
whole matter has been in the hands of the convention. 
The convention has not seen fit to take that course. 

Are there any further nominations for doorkeeper 
and postmaster? If there are none, the chair will an- 
nounce the nominations closed. Gentlemen, how shall 
we proceed to the election of doorkeeper and post- 
master ? 

Mr. HEYBURN. I move that we proceed to elect 
Mr. Cartwright by acclamation. (Seconded). Carried. 

Mr. Ballentine. I desire to present the name of 
Master Edward Hawley as one of the pages of this con- 
vention. (Seconded). 

The CHAIR. Master Edward Hawley has been 
nominated as one of the pages of this convention. Are 
there any further nominations? 



PERMANENT ORGANIZATION 29 

A MEMBER. I desire to nominate for page Master 
Joseph Speigel of Boise. (Seconded). 

The CHAIR. The name of Master Joseph Speigel 
has been presented as one of the pages of this conven- 
tion. Are there any further nominations? 

Mr. GRAY. Mr. President, I will inquire how many 
are to be elected. This is a matter entirely before the 
convention to decide. I will suggest, in the first place, 
we adopt some resolution offered limiting the number of 
pages and have the convention take some action in re- 
gard to it. 

Mr. BALLENTINE. If in order, I move that the 
number of pages be limited to four. 

The CHAIR. Is there any second for the motion? 
( Seconded ) . Carried. 

The CHAIR. Nominations for the position of page 
are still open. 

Mr. McMAHON. I desire to place in nomination 
for page, Master Alexander Smith of Ada County. 

The CHAIR. Is there any second for the nomina- 
tion? (Seconded). 

The CHAIR. Are there any further nominations, 
gentlemen? If there are no further nominations and 
there is no objection thereto, the chair will declare the 
nominations for pages closed. Is there objection? 

A MEMBER. I believe, Mr. President, you labor 
under a misunderstanding. There should be four nom- 
inations; there are but three. 

Mr. CAVANAH. I presume, Mr. President, with 
the magnanimity of the other side, they have left that 
nomination to us. But as one republican has nominated 
a brother democrat who has never voted for a repub- 
lican yet. I think we ought to be satisfied. (Applause) . 

A MEMBER. Mr. President, I put in nomination 
Master Woodie Maxey. (Seconded). 

The CHAIR. Are there any further nominations? 
If there are none and there is no objection, the chair 
will declare the nominations closed. Edward Hawley, 
Joseph Speigel, Master Smith and Master Maxey have 



30 COMMITTEE ON RULES 

been put in nomination for the position of pages. How 
shall we proceed with the election? 

Mr. SHOUP. I move that they be elected collect- 
ively by acclamation. (Seconded). 

The CHAIR. It is moved and seconded, gentlemen, 
that the four names placed in nomination shall be elected 
by acclamation. (Carried). It is so ordered. 

I believe this completes, so far as the chair has any 
information, the organization of the convention. The 
further business of the convention is in the hands of 
the convention itself. 

COMMITTEE ON RULES. 

Mr. SHOUP. I move you that a committee of three 
members be appointed to report rules for the govern- 
ment of the convention and that the president shall be 
ex-officio a member of that committee. (Seconded). 

The CHAIR. It has been moved and seconded, 
gentlemen, that a committee of three be appointed to 
report rules to the convention and that the President, 
ex-officio, shall be a member of that committee. Are 
there any remarks? 

Mr. MAYHEW. Of course, I am in favor of a 
committee to be appointed or elected, as the case may 
be, for reporting the rules of this convention, but I 
think that the committee should be increased if it meets 
with the approbation of the gentleman who made the 
motion for three. I think that the committee should 
consist of five. You will find out, gentlemen, when that 
committee comes together to report a set of rules to 
this convention, it will be considerable labor, and by 
having a large committee, a committee of five, I am sat- 
isfied, Mr. President, when the rules are reported back, 
they will not be apt to meet with the disapprobation of 
the members. Now, a committee to report rules for 
this convention has got a great deal of information to 
obtain and has got to secure some rules, perhaps in the 
the codes of rules from rules generally adopted by a 
legislative body, and a great many rules that govern 



COMMITTEE ON COMMITTEES 31 

legislative bodies will be met with in a convention of 
this kind. Therefore, I suggest, Mr. President, and will 
move that the committee consist of five members in- 
stead of three. 

Mr. MORGAN. Second the motion. 

The CHAIR. Any further remarks, gentlemen? 

It has been moved and seconded that a committee of 
three on rules be appointed, to which an amendment is 
offered that the number be increased to five. (Vote and 
carried.) The motion prevails. 

COMMITTEE ON COMMITTEES. 

Mr. HEYBURN. Mr. Speaker, I move that a com- 
mittee of five be appointed on committees, to determine 
what committees shall exist in this body. (Seconded.) 

Mr. MAYHEW. Since the motion has been sec- 
onded, Mr. President, I understand that the committee on 
Rules is the committee that is to determine that fact. 
The committee on Rules always determines how many 
committees there shall be, although a new committee 
for the purpose of determining how many committees 
there shall be and on what subjects those committees 
shall be appointed, may be proper. If it should be under- 
stood, Mr. President, that the committee on rules should 
simply draft a series of rules to govern the action of 
this convention, that is all right. Then that committee 
would be relieved of reporting back to this convention 
the committees of this convention. I suppose that is the 
idea of the gentleman from Shoshone (HEYBURN) to 
have this committee relieve the committee on Rules in 
that respect. 

The CHAIR. I presume that is the object of the 
motion; to divide the labor of the committee on Rules. 
Gentlemen, it has been moved and seconded that a com- 
mittee on Committees, consisting of five members, shall 
be appointed, which shall have to report to this conven- 
tion the number and character of the standing com- 
mittees of the convention, I believe that is the motion. 
(Vote.) 



32 SEATING OF MEMBERS 

The motion prevails. 

SEATING OF MEMBERS. 

Mr. WILSON. I move that the Sergeant-at-Arms 
be instructed to number the seats of this hall and that 
the numbers corresponding thereto be placed on slips of 
paper and put into a box, and that at the coming in of 
the members this afternoon, each member shall draw 
one of the slips therefrom, and the number of the seat 
corresponding thereto shall be designated as such mem- 
ber's seat during the term of this convention. (Seconded.) 

Mr. BEATTY. I move an amendment to that reso- 
lution, that the members be allowed to retain the seats 
they now occupy with the privilege of changing, if they 
so desire. If I hear a second, I will give my reasons. 
(Seconded.) 

Now, Mr. President, the members undoubtedly will 
prefer arranging themselves in groups to suit, and if we 
go into a drawing of that kind, delegates of different 
counties will scatter all over the house and it will take a 
day or two to get arranged. We are now all satisfied 
and pleased, and perhaps the members have selected 
seats to suit themselves, and by each member being 
allowed to retain the seat occupied by him, with the 
privilege of exchanging if desirable, the delegations can- 
get together easily. 

Mr. MAYHEW. Mr. President, I am opposed to the 
amendment if he desires the members to retain their 
seats. Now I say that we are terribly scattered and I 
am a long ways from the members of this county that T 
represent, and I do not know how I am to get anywhere 
nearer. Now I say the fairest rule to do it is to draw for 
your seats and afterwards you can accept them if you 
please. I understand that Alturas has selected three or 
four seats by themselves and the balance is scattered, 
and so long as the balance is scattered, I am in favor of 
scattering every one of them. Take the chances with 
Alturas. 

The CHAIR. Any more remarks, gentlemen? 



COMMITTEES APPOINTED 33 

Mr. WILSON. I hope the amendment of Judge 
Beatty will not prevail, for the reason that some dele- 
gates are back here in these inconvenient seats and 
others have selected very good seats this morning, and 
so far, the seats have been selected by those who got 
in here first. If my motion prevails, we can readily 
make the selection which Judge Beatty suggests — more 
readily than if this amendment prevails. Some members 
of each delegation will get favorable seats; others may 
possibly not. Then we can make this exchange and 
every one will have the same opportunity. 

A MEMBER. I hope this motion will not prevail, 
for the reason that there are some members from some 
delegations who have no seats at all. 

The CHAIR. It has been moved and seconded that 
a drawing for seats shall take place under a numbering 
and supervision of the Sergeant-at-Arms, on the con- 
vening of this convention this afternoon, and an amend- 
ment is made by the member from Alturas that the 
members may arrange the seats to suit themselves. 
(Vote.) The noes have it. 

(Division called for; rising vote.) 
It is not necessary to count, gentlemen, the resolu- 
tion is lost. 

All those in favor of the adoption of the resolution as 
originally made, signify it by saying aye; contrary, no. 
(Vote.) The resolution prevails. 

COMMITTEES APPOINTED. 

The CHAIR. If the convention will have patience, I 
desire to arrange these special committees which have 
been ordered. The chair will announce as the committee 
on Rules, under the resolution adopted by this convention, 
Shoup of Custer, Beatty of Alturas, Morgan of Bing- 
ham, Reid of Nez Perce, and Mayhew of Shoshone. 
For the committee on Committees, Heyburn of Shoshone, 
Mr. Allen of Logan, Hays of Owyhee, Standrod of Onei- 
da and Mr. Batten of Alturas. 



34 GRANTING FREEDOM OF THE FLOOR 

Mr. SHOUP. Mr. President, I would suggest that 
Mr. Standrod has gone home and will not be back be- 
fore tomorrow night. 

The CHAIR. The chair will substitute, then, in 
place of Mr. Standrod, Mr. Ainslie. What is the fur- 
ther pleasure of the convention, gentlemen? 

GRANTING FREEDOM OF THE FLOOR. 

Mr. HEYBURN. Mr. President, during the ses- 
sion of the convention yesterday, a resolution was 
adopted tendering to certain of the executive and ju- 
dicial officers of the territory the freedom of the 
floor as a compliment to those gentlemen. We 
omitted some of the executive officers of the terri- 
tory. I think we should correct the error today and 
therefore offer the following resolution: Resolved, That 
the freedom of the floor of the convention be allowed to 
the Hon. Fred T. Dubois, our delegate in Congress, 
to the Hon. Richard Z. Johnson, Attorney General, and 
to each of the executive officers of this territory. (Sec- 
onded.) Carried. 

The CHAIR. What is the further pleasure of the 
convention ? 

Mr. KINPORT. I move you, Sir, that the Sergeant- 
at-Arms be instructed to secure a clock for the use of 
the convention. 

The CHAIR. Any second to the motion. (Seconded.) 

The CHAIR. I don't think it would be well to wait 
until we get a committee on ways and means. (Put to 
vote and carried.) 

Mr. MAYHEW. As the committee on Rules has been 
appointed and the committee on Committees appointed, 
and I do not see that the convention now can do any- 
thing until the reports of these committees have been 
received. I don't know anything that it can do unless it 
be some minor matters — don't know anything to be done 
at all. I think the convention now should adjourn to 
allow these committees time to make their reports, and 
I say, Mr. President, that it will take them some time for 



REPORT OF RECEPTION COMMITTEE 35 

that. I now move that the convention adjourn until 3:00 
o'clock this afternoon. 

A MEMBER — Mr. Chairman, before that motion is 
passed — Is the gentleman through with the motion? 

The CHAIR. Yes, Sir; that is all. 

A MEMBER. A committee was yesterday appointed 
to wait on the Senate Committee on Indian Affairs and 
extend to them the courtesies of the convention. 

The CHAIR. The motion hasn't been seconded, 
has it? 

No, sir. 

REPORT OF RECEPTION COMMITTEE. 

The CHAIR. If the special committee appointed on 
yesterday is in convention and is ready to report, it will 
now make its report. 

Gentleman from ADA. I think that Governor 
Shoup is the chairman of the committee. In the absence 
of the Governor, perhaps it would be about as well for 
some other member to make the report, inasmuch as we 
have no control of the actions of the Governor and can- 
not require him to make a report, if he does not see fit 
to do it. 

Mr. SWEET. Mr. Chairman, on behalf of the Com- 
mittee, I will say that we met the committee at Clifton on 
the west-bound train last night. They informed us at 
once that it would be impossible for them to stop over at 
Boise, owing to the fact that they were obliged to connect 
with the boat at Tacoma on their way to Alaska. They 
invited, however, the committee from this convention to 
make any suggestions they might see fit, and acting 
upon that, Senator Dawes called the committee to order 
and Governor Shoup introduced the members of this 
committee from the various parts of the territory. Mr. 
McConnell and myself presented the resources and possi- 
bilities of North Idaho as best we might. Mr. Ainslie 
spoke in behalf of his section of the country and its 
mining industries. Mr. Allen spoke of irrigation in his 
section and of its possibilities. Mr. Beane spoke for 



36 REPORT OF RECEPTION COMMITTEE 

Bingham county and Governor Shoup made quite an 
address on the resources and possibilities of Lemhi and 
Custer counties. This occupied nearly all the time of 
the committee. I will say that Mr. Dawes, the chairman 
of the committee on Indian Affairs, and each member 
of the committee stated and declared that this convention 
might rely upon their personal efforts for the admission 
of Idaho under the constitution we shall adopt. I will 
say that Mr. Dawes asked Mr. Ainslie if there was any 
opposition to the admission of Idaho on the part of any 
of its people, and Mr. Ainslie replied that there was none, 
that practically the people of Idaho were unanimous 
upon that proposition, and stated, furthermore, that this 
was a strictly non-partisan convention. At the same 
time I think he winked at the Senator from Arkansas, 
Mr. Jones, and that the Senator from Arkansas under- 
stood the wink and winked at Ainslie. And when the 
train pulled out from Nampa, the chairman with Senator 
Stockbridge from Michigan, Senator Manderson from 
Nebraska, with two goblets that looked to me as if they 
contained something very much like soda water, stood 
upon the rear platform, waved their hats and proposed 
a toast to the state of Idaho, which the gentlemen gave. 
The CHAIR. What is the further pleasure of the 
convention? (Motion to adjourn; seconded.) It has 
been moved and seconded that this convention do now 
adjourn until 3:00 o'clock this afternoon. (Carried.) 
The convention is adjourned. 

Saturday, July 6th, 3: 00 P. M. 

The CHAIR. The convention will come to order. 
The first thing before the convention this afternoon, 
gentlemen, will be the report of the committee on Rules. 

Mr. SHOUP. Mr. President, the committee have 
agreed upon a code of rules, but they are not yet ready 
to report and ask for further time — probably be ready to 
report Monday morning. 

The GHAIR. The committee on rules reports 
progress and asks further time until Monday morning. 



REPORT OF COMMITTEE ON COMMITTEES 37 

Shall leave be granted? If there is no objection, it shall 
be ordered. 

The CHAIR. The next matter in the way of business 
committee appointed to report a list of standing com- 
mittees for the convention. I understand the committee 
is ready to report, but the chairman is not present. Per- 
haps we might proceed to draw the seats. It was stated 
that the drawing should take place at 3 o'clock. 

DRAWING OF SEATS. 

The CHAIR. The chair would like to inquire how 
this drawing is to be had. The customary manner of 
drawing? 

A MEMBER. I think, Mr. President, the proper way 
would be to call the roll and as the name is called, let 
each member come up and draw his seat. 

The CHAIR. That would be just as well. 

Mr. WILSON. Mr. President, the tickets should be 
folded so that a man cannot see the letters on them; 
otherwise that would not be fair. 

The CHAIR. The chair is informed by the Sergeant- 
at-Arms, having the matter in charge, that the tickets 
which are prepared are small and cannot very well be 
folded, therefore I would suggest that one of our 
pages be blindfolded and let him draw as the roll-call 
proceeds. If there is no objection, that course will ob- 
tain. Gentlemen, as your names are called by the sec- 
retary, the page will draw from the list the number 
which will be credited to the names. Secretary, please 
call the roll. 

(Secretary calls the roll and numbered seats are 
assigned to members.) 

Gentlemen, please take an informal recess for ten 
minutes so that the members can take their seats. 

REPORT OF COMMITTEE ON COMMITTEES. 

The CHAIR. The convention will come to order. 
The chairman of the committee on Committees is now 
present. The next thing in order will be the reception 
of the report of that committee. 



38 REPORT OF COMMITTEE ON COMMITTEES 

Mr. HEYBURN. Your committee on Committees 
beg leave to report and recommend that the following 
committees constitute the standing committees of this 
convention, and that their duties shall be as follows: 

A committee of five to be known as the Committee on 
Ways and Means. This committee to consider and pass 
upon all matters of expenditure connected with this con- 
vention; to audit and report all bills of such expenditure, 
and report the per diem and mileage of members anc 
attaches of this convention. 

A committee of seven to be known as the Committee 
on Executive Department. This committee to consider 
and report all matters that pertain to the formation of 
the Executive Department of the government of the 
state. 

A committee of seven to be known as the Legislative 
Committee. This committee to consider and report all 
matters that pertain to the formation of the Legislative 
Department of the state. ■, 

A committee of nine to be known as the Committee 
on Judiciary. This committee to consider and report all 
matters that pertain to the formation of the Judicial 
Department of the state, and to provide for the matter 
of future amendments of the Constitution, and to con- 
sider and report upon all legal questions referred to them 
by request of other committees, or by order of the con- 
vention. 

A committee of seven to be known as the Committee 
on Bill of Rights. This committee to consider, draft, 
and report a preamble and Bill of Rights, to be embodied 
into the Constitution of the state. 

A committee of five to be known as the Committee 
on Names, Boundaries and Organization. This committee 
to consider and report the name and boundaries of the 
state of Idaho, and the names and organizations of the 
counties. 

A committee of seven to be known as the Committee 
on Seat of Government, Public Institutions, Buildings 
and Grounds. This committee to consider and report all 



REPORT OF COMMITTEE ON COMMITTEES 39 

matters pertaining to the location of the seat of govern- 
ment, character and location of public buildings and 
grounds, and the control and government of the same. 

A committee of nine to be known as the Committee 
on Education, Schools, School and University Lands. 
This committee to consider and report all matters per- 
taining to public education, public schools, school and 
university lands. 

A committee of seven to be known as the Committee 
on Election and Rights of Suffrage. This committee to 
consider and report all matters pertaining to elections, 
tenure of office and the elective franchise. 

A committee of nine to be known as the Committee 
on Revenue and Finance. This committee to consider 
and report all matters pertaining to the levying and 
collecting of taxes, and the disbursement of public 
money. 

A committee of to be known as the Committee 

on Legislative Apportionment. This committee to con- 
sider and report the apportionment of members of the 
legislative bodies of the state, to the several counties or 
districts. 

(Mr. Chairman, we have left this number blank to be 
filled in by the convention.) 

A committee of seven to be known as the Committee 
on Militia and Military Affairs. This committee to con- 
sider and report all matters pertaining to the public 
defense. 

A committee of nine to be known as the Committee 
on Public and Private Corporations. This committee to 
consider and report all matters pertaining to the forma- 
tion and control of public and private corporations, and 
the fixing of rates of fares. 

A committee of nine to be known as the Committee 
on Municipal Corporations. This committee to consider 
and report upon all matters pertaining to the formation 
and government of municipal corporations. 

A committee of five to be known as the Committee on 
Federal Relations. This committee to consider and re- 



40 REPORT OF COMMITTEE ON COMMITTEES 

port all memorials addressed to the general government 
and its several departments, and to provide for the trans- 
mission of the Constitution to the Executive and Legis- 
lative Departments of the general government. 

A committee of nine to be known as the Committee 
on Labor. This committee to consider and report upon 
matters pertaining to the interests and protection of 
labor. 

A committee of nine to be known as the Committee 
on Schedule. This committee to consider and report 
the manner and time of submission of the Constitution 
to the people for adoption, and to consider and report 
the preservation of existing rights and existing laws in 
the transition of the territorial to a state government, 
and to consider and report the application of the insti- 
tutions and agencies described in the Constitution. 

A committee of nine to be known as the Committee 
on Manufactures, Agriculture and Irrigation. This 
committee to consider and report all matters pertaining 
to the interests and promotion of manufactories, agri- 
culture and irrigation. 

A committee of nine to be known as the Committee 
on Mines and Mining. This committee to consider and 
report upon all subjects pertaining to the interests and 
promotion of mines and mining and the use of water in 
connection therewith. 

A committee of five to be known as the Committee on 
Live Stock. This committee to consider and report upon 
all matters pertaining to the raising of live stock and 
the protection of stock against infectious diseases. 

A committee of seven to be known as the Committee 
on Printing and Binding. This committee to consider 
and report all matters pertaining to the printing and 
binding incident to this convention. 

A committee of nine to be known as the Committee 
on Revision and Enrollment. This committee to consider 
and report the revision and enrollment of the constitu- 
tion and all memorials adopted by this convention; to 
correct all grammatical or other errors, to arrange the 



REPORT OF COMMITTEE ON COMMITTEES 41 

different subjects under their appropriate heads and 
attend to the enrollment of the same as revised. 

A committee of seven to be known as the Committee 
on Salaries of Public Officers. This committee to con- 
sider and report the salaries of all public officers pro- 
vided for by this constitution. 

A committee of five to be known as the Committee on 
Public Indebtedness and Subsidies. This committee to 
consider and report upon the creation and control of 
public indebtedness, state, county, and municipal, and 
the subject of subsidies. 

A committee of five to be known as the Committee on 
Revision of Rules. Said committee to consider and re- 
port all matters pertaining to the revision of the rules 
of this convention. 

Respectfully submitted, 

W. B. Heyburn, 
Chairman of Committee on Committees. 

The CHAIR. The report of the committee is before 
you, gentlemen; what is your pleasure with reference to 
that report? 

Mr. RE ID. Mr. Chairman, I would like to hear the 
duties of the Ways and Means committee read again 
please. 

(Mr. Heyburn reads.) 

Mr. REID. Do I understand — I make the inquiry 
of the chair, do they fix the mileage or is that left to the 
convention, and then passed upon by the convention? 

Mr. HEYBURN. They simply report to the con- 
vention. 

Mr. PINKHAM. I move that the report of the com- 
mittee on Committees as read by the gentleman be re- 
ceived, and then it will be open to discussion after that 
time. (Seconded.) 

The CHAIR. It is moved and seconded, gentlemen, 
that the report of the committee on Committees be now 
received. (Carried.) 

Mr. GRAY. Mr. President, my understanding was 
that the committee will report upon the mileage — the 



42 REPORT OF COMMITTEE ON COMMITTEES 

distance that has been traveled. Am I correct in that? 

Mr. HEYBURN. Simply to report. 

Mr. GRAY. That is, simply to report. 

Mr. MORGAN. Mr. President, I move that the re- 
port of the committee be adopted. 

Mr. GRAY. Second the motion. 

The CHAIR. The chair will call attention of the 
convention to one thing before that motion should be 
put. In my recollection, there is a blank as to the num- 
ber of members of one of those committees. I do not 
now remember which one. 

Mr. HEYBURN. If the chair will put the question, 
I will state the idea of the committee on that question. 

Mr. MAYHEW. I think that blank is filled out. 

The CHAIR. That is what the chair calls the atten- 
tion of the convention to. If the report is adopted as it 
is now, there will be one of the committees, the number 
of which will have to be filled in, and if the gentleman 
from Bingham will withdraw his motion — 

Mr. MORGAN. My motion was that the report be 
adopted. This motion could be amended, if necessary, 
so as to fill the blank. However, I withdraw the motion. 

Mr. POE. I move that the blank be filled by insert- 
ing the name of a member from each county of the 
territory . ( Seconded. ) 

The CHAIR. It is moved and seconded, gentlemen, 
that this blank as to the number of members who com- 
pose the committee on Apportionment be filled by 
placing a number in which will represent a total number 
of counties of this territory. (Carried.) 

Mr. MORGAN. I would like to inquire of the chair- 
man if that is the only blank to be filled. 

The CHAIR. That is the only blank to be filled. 

Mr. HEYBURN. I move, then, that the report of 
the committee be adopted. (Seconded.) 

The CHAIR. It is moved and seconded, gentlemen, 
that the report of the committee on Committees be 
adopted. ( Carried. ) 



EMPLOYMENT OF STENOGRAPHERS 43 

Mr. SWEET. Mr. President, I am informed by the 
secretary of the territory that he has wired to Denver, 
Colo., for the purpose of ascertaining if we could have 
stenographers and have been notified that two experts 
can be obtained. It would be, of course, the duty of 
the committee on Ways and Means to provide for the 
payment of these stenographers, providing the conven- 
tion desires. He said it would be necessary, however, if 
we obtained these stenographers at once, to notify them 
at Denver this afternoon by wire, and they could then 
leave there tomorrow morning, and it would delay the 
matter if we should wait for the committee on Ways and 
Means. I therefore move you, Mr. President, that the 
secretary of the territory be instructed to wire those 
stenographers to come at once. I will say, further, that 
the secretary told me, or informed me, that he had some 
conversation with various men of Boise here, and there 
would be no trouble to raise the money to pay them if 
the convention wanted to have them. 

Mr. GRAY. Mr. President, we have one stenog- 
rapher. I don't know why we should require two. We 
have one here, the court stenographer, and I do not 
know why it would be a necessity to go to the expense of 
having two. One might be necessary, but I don't know 
that two would. 

Mr. SWEET. I am sure, Mr. Chairman, I know 
nothing about it. I do not know why they cannot obtain 
them here, and why it is necessary to go to any other 
place to get them. I stated what I know about it. 

Mr. MORGAN. I had understood that the gentleman 
that is now present could only stay two weeks. I would 
say, Mr. President, in my opinion it would be necessary 
to have at least two first-class stenographers, and I be- 
lieve it would take three a good deal of the time. The 
gentlemen of the convention must recollect that in this 
convention everything is reported — even all speeches of 
the members are reported and afterwards published, n 
will take two first-class stenographers and I think that 



44 APPOINTMENT OF STANDING COMMITTEES 

two would be able to do it. I know that in the hurry of 
business in a convention of this character, a stenographer 
will be put to his utmost skill if he takes down the 
proceedings of the convention two hours at a time. In 
my judgment, Mr. President, we will find plenty of work 
here for three men, if we can get them. 

The CHAIR. Are there any further remarks? 

Mr. GRAY. I will just ask the opinion of the sten- 
ographer here — if he thinks he and another man 
will be able to do it. If he don't, I will certainly yield. 

STENOGRAPHER. (Mr. Gilbert) It would be bet- 
ter to have three or four. 

Mr. GRAY. Then I am willing. 

The CHAIR. It has been moved and seconded that 
the secretary of the territory, Mr. Curtis, be requested to 
obtain the services of two stenographers to report the 
proceedings of this convention. (Vote, and carried). 

Mr. MORGAN. If there is nothing further to be 
done this afternoon, in order to give the president an 
opportunity to form these committees, I move that the 
convention do now adjourn until 10 o'clock on Monday 
morning. 

Mr. HEYBURN. I hope the gentleman will hold 
that a moment. I desire to ask to be excused. Mr. 
President, I desire the consent of the convention to be 
excused until next Saturday morning. It is necessary 
for me to leave the territory to attend to professional 
business and I shall have to be away until that time. 

The CHAIR. Is there any objection to the leave of 
absence being granted to the gentleman from Shoshone? 
If there is no objection, it will be so allowed. Did you 
say until next Saturday morning, Mr. Heyburn? 

Mr. HEYBURN. Until next Saturday morning. 

APPOINTMENT OF STANDING COMMITTEES. 

The CHAIR. Before the motion to adjourn is put, 
just now pending before the house or convention, I wish 
to say that the chair will use its utmost endeavors to 
make up the standing committees reported by the com- 



APPOINTMENT OF STANDING COMMITTEES 45 

mittee on Committees in order that they may be an- 
nounced at 10 ,o'clock on Monday. 

The chair appreciates the responsibility and difficul- 
ties attending upon this labor. It is barely possible that 
it may require some longer time than until 10 o'clock 
Monday morning. I think that it is proper that I at this 
time announce one fact, and that is I have obtained a 
list of these delegates and have concluded as to the num- 
ber of committees which will be awarded to the members 
of the democratic party on each committee and propose 
to make a list of the committees and of such number, so 
that I request that our democratic friends who are in 
the convention will themselves in caucus select their own 
members of those committees, which will relieve the 
chair from considerable responsibility and it will insure 
in the selection of those members the strongest men to 
form the permanent committees. In other words, I wish 
to say to the convention, we have met here for the pur- 
pose of laying the foundation of the new state. There 
will come before the convention subjects which in their 
ultimate results may reach for a long number of years 
to come. Our labors are at the bottom of the future wel- 
fare and prosperity of this territory or of the state, and 
for that reason every question which is a matter of pub- 
lic importance should be ably presented; should be as 
ably represented in the convention as possible in order 
that the convention itself may come to a conclu- 
sion; and with that in view, the chair will request the 
gentleman who may have charge of the selection of the 
committees whom I have referred to, to select their 
strongest members. In other words, the chair proposes 
to divide the responsibility of these appointments. 

Gentlemen, it is now moved that we adjourn until 
Monday morning at 10:00 o'clock. (Vote and carried.) 
The house is now adjourned until Monday morning at 
10:00 o'clock. 



46 REPORT OF COMMITTEE ON RULES 

FOURTH DAY. 

Monday, July 8, 10:00 A. M. 

The CHAIR. Gentlemen of the convention, you will 
please come to order. The secretary will call the roll. 

(Secretary calls the roll.) 

Absent: Messrs. Beane, Blake, Gray, Harkness, Hen- 
dryx, Jewell, Standrod, Woods, Hagan, Vineyard. Ex- 
cused, Mr. Heyburn. 

Prayer by chaplain. 

Secretary reads minutes of Saturday's session. 

The CHAIR. Any corrections to suggest as to the 
minutes? If not, they will be considered approved. 

REPORT OF COMMITTEE ON RULES. 

The CHAIR. Gentlemen of the convention, the un- 
finished order of the day is the report of the committee 
on Rules. I ask that that committee make a report. 

Mr. SHOUP. Mr. President, I am directed by the 
committee on Rules to report to this convention rules for 
its government. If it is the desire of the convention 
that these rules should be read and considered at the 
present time, that will be very satisfactory to the com- 
mittee. A copy of said rules are herewith sent to the 
secretary's desk. 

Respectfully submitted, 

J. M. Shoup, 

Chairman. 

The CHAIR. If there is no objection, gentlemen, the 
secretary will read the rules, rule by rule, for action by 
the convention. 

SECRETARY reads: RULE 1. The President shall take the 
chair every day precisely at the hour to which the convention 
shall have adjourned on the preceding day, and shall immediately 
call the members to order. 

The CHAIR. If there is no objection, gentlemen, the 
first rule in the report will be considered as adopted. 
There is no objection. 

SECRETARY reads: RULE 2. The President shall have gen- 
eral direction of the hall, and shall have the right to name any 
member to perform the duties of the .chair, but such substitution 
shall not extend beyond an adjournment. 



REPORT OF COMMITTEE ON RULES 47 

The CHAIR. Is there any objection to Rule 2? If 
not, it will be considered as adopted. Secretary will 
proceed. 

SECRETARY reads: RULE 3. He shall preserve order and 
decorum in the proceedings of the convention, and in case of any 
disturbance or disorderly conduct in the galleries or lobby, the 
president or chairman of the committee of the Whole Convention 
shall have power to cause the same to be cleared. 

The CHAIR. If there is no objection to Rule 3, it 
will be considered as adopted. 

SECRETARY reads: RULE 4. There shall be elected a Vice- 
President who, in the absence of the president, shall have all the 
powers and perform all the duties of the president. 

The CHAIR. Mr. Secretary, to save time, just make 
a pause between each rule, and if any members have ob- 
jections, they can make them as you go along. 

SECRETARY reads: RULE 5. Reporters for newspapers, or 
stenographers wishing to take down debates, may be admitted with- 
in the bar of the convention by the president who shall assign 
such places to them as shall not interfere with the convenience of 
the convention. 

(No objection). 

Mr. REID. Mr. Chairman, I ask the unanimous con- 
sent that the reading of Rule 6 be omitted as we have 
heard that read this morning. 

The CHAIR. If there is no objection, the reading of 
Rule 6 will be omitted. 

(Rule 6 simply gives the titles and number of members for 
committees as found in the report of the committee on Commit- 
tees at page 42 et seq.) 

SECRETARY reads: RULE 7. All committees shall be ap- 
pointed by the President, unless it shall be otherwise directed by 
the convention, in which case they shall be appointed by vote of 
the convention. 

(No objection). 

OF THE RIGHTS AND DUTIES OF THE MEMBERS. 

RULE 8. Members and officers of the convention are required 
to be constantly in attendance upon the duties of their positions, 
and leaves of absences to such will only be granted by vote of the 
convention. 

RULE 9. Whenever a member is about to speak, he shall 
rise from his seat and respectfully address himself to "Mr. Presi- 
dent," and the President shall announce the gentleman from the 



48 REPORT OF COMMITTEE ON RULES 

county he represents and if there be more than one member from 
such county, then by adding the name of the member. The mem- 
ber may then speak, either from his seat, or from the seat of any 
other member tendered him for the purpose, or from the Secre- 
tary's stand. 

Mr. MORGAN. Mr. President, it occurs to me that 
the rule read just previous to this, Rule 8, which re- 
quires a vote should be taken every time a member de- 
sires a leave of absence, might be amended by adding "or 
unanimous consent. ,, This would not require a vote to 
be taken each time. I move that it be so amended. 
(Seconded). 

The CHAIR. It is moved and seconded, gentlemen, 
that Rule 8 be so amended as to allow leave of absence 
to be granted by vote of the convention or by unanimous 
consent. (Vote). The amendment is carried. 

(The reading of the rules proceeds without objection, 
as follows:) 

RULE 10. In all cases the member who shall first rise and 
address the chair shall speak first, but when two or more members 
shall rise at once, the president shall name the member who is to 
speak first. 

RULE 11. No member shall speak more than twice on the 
same question, unless by leave of the convention, and he shall 
confine himself to the questions under debate, and avoid per- 
sonality. 

RULE 12. Any member while discussing a question, may read 
from books, papers or documents, any matter pertinent to the sub- 
ject under consideration, without asking leave. 

RULE 13. Any member may call for a statement of the ques- 
tion, which the president may give sitting. 

RULE 14. Any member may call for a division of the ques- 
tion, and the decision of the president as to its divisibility shall 
be subject to appeal as in questions of order. 

RULE 15. Every member present, when the question is put, 
shall vote unless the convention excuse him. Any member re- 
questing to be excused from voting, or desiring to explain his 
vote, may make a brief verbal statement of his reasons for making 
such request, and the question shall then be taken without further 
debate. 

RULE 16. While the president or chairman is putting any 
question or addressing the convention, no one shall walk across 
the hall; and while a member is speaking, no one shall pass be- 
tween him and the chair. No person or member shall go to or 



REPORT OF COMMITTEE ON RULES 49 

remain at the secretary's table while the yeas and nays are being 
called, or ballots called, except the secretary and his assistants. 

RULE 17. Any two members shall have the right to demand 
the yeas and nays upon any question before the result is an- 
nounced; but if objection is made, the demand shall be sustained 
by one-fifth of the members present; if not sustained any member 
may, upon request, have his vote upon the question recorded upon 
the Journal, and upon the call for the yeas and nays, the secre- 
tary shall call over the names alphabetically. 

RULE 18. Any three members have the right to demand a 
call of the convention, but if objection is made, the demand shall 
be sustained by one-fifth of the members present; and upon a 
call of the convention, the names of the members shall be called 
alphabetically and absentees noted. 

RULE 19. Any five members have the right to demand the 
previous question. The previous question shall be put in this 
form: "Shall the main question now be put?" and until decided 
shall preclude further debate, and all amendments and motions, 
except one motion to adjourn and one motion to lay on the table. 
All incidental questions, or questions of order arising after a 
motion is made for the previous question and pending such motion, 
shall be decided, whether on appeal or .otherwise, without debate. 

RULE 20. On a motion for the previous question, and prior 
to voting on the same, a call of the convention shall be in order; 
but after the demand for the previous question shall have been 
sustained, no call shall be in order; and the convention shall be 
brought to an immediate vote, first, upon the pending amendments 
in the inverse order of their age, and then upon the main ques- 
tion. 

RULE 21. If a call for the previous question shall not be 
sustained, the subject under consideration shall not thereby be 
postponed. 

ORDER OF BUSINESS FOR THE DAY. 

RULE 22. As soon as the convention is called to order, 
prayer may be offered, the roll shall be called and the absentees 
noted, and a quorum being present, the Journal of the preceding 
day shall be read by the secretary, and, if necessary, corrected by 
the convention. 

RULE 23. A majority of members elected to the convention 
shall be necessary to constitute a quorum to do business; and a 
majority of those voting shall be sufficient to decide pending 
questions. 

RULE 24. As soon as the Journal is read and corrected as 
aforesaid, the President shall call for Presentations of Petitions 
and Memorials, Reports of Standing Committees, Reports of Select 
Committees, Final Readings. The above business shall be disposed 



50 REPORT OF COMMITTEE ON RULES 

of in the order in which it is arranged, and shall not be in order 
at any other time. 

RULE 25. Every petition and memorial shall be referred, on 
motion, without putting the question for that purpose, unless the 
reference is objected to by a member at the time of its presenta- 
tion. No petition or memorial shall be printed unless by special 
order of the convention. 

RULE 26. Communications from the Executive Department 
of the Territory may be received, read and disposed of at any 
time except when the President is putting a question, while the 
yeas and nays are being called, or while ballots are being counted. 

RULE 27. The interim between any two sessions of the 
convention on the same day shall be termed a recess; and, on re- 
assembling at the appointed hour, any question pending at the 
time of taking such recess shall be resumed without motion to 
that effect. 

ON MOTIONS AND QUESTIONS. 

RULE 28. Every motion shall be reduced to writing, if the 
president or any member shall require it. 

RULE 29. When a motion is made and seconded, it shall be 
stated by the president; or, being in writing, it shall be read 
audibly to the convention by the mover or the secretary, before 
debate. 

RULE 30. After a motion is stated by the president, or read 
by the secretary, it shall be deemed in the possession of the con- 
vention, but may be withdrawn, by leave of the convention, at 
any time before decision or amendment. 

RULE 31. All questions whether in committee or convention, 
except privileged questions, shall be put in the order in which 
they are made, except in filling blanks, the largest sum or num- 
ber and longest time shall be put first. 

RULE 32. When a question is under debate, no motion shall 
be received but to adjourn; to take a recess; to proceed to the 
orders of the day; to lay on the table; for the previous question; 
to postpone to a day certain; to commit; to amend; to postpone 
indefinitely; which several motions shall have precedence of each 
other in the order in which they are arranged. 

RULE 33. When a motion is made to commit to a committee 
of the whole convention, or to a standing committee, it shall not 
be in order to amend such motion by substituting any other com- 
mittee; but if any other committee be suggested, the motion shall 1 
be first put upon the committee first named, and afterward upon 
the committee or committees suggested, in the order in which they 
are named; but a motion to refer to a committee of the whole 
convention, to a standing committee, or to a select committee, 
shall have precedence in the order named. 



REPORT OF COMMITTEE ON RULES 51 

RULE 34. A motion to postpone to a day certain, or in- 
definitely, being decided, shall not again be allowed at the same 
stage of the proposition. 

RULE 35. A motion to adjourn shall be always in order, but 
being decided in the negative, shall not be again entertained until 
some motion, call or order shall take place. 

RULE 36. The following questions shall be decided without de- 
bate, to-wit: to adjourn, to take a recess, to lay on the table, 
to take from the table, to go into committee of the whole on the 
orders of the day, and questions relating to the priority of busi- 
ness. 

Mr. AINSLIE. I would like the secretary to read 
again in regard to questions decided without debate. 

SECRETARY reads Rule 36. 

Mr. AINSLIE. It seems to me that question in re- 
gard to the priority of business is a debatable question 
only. I would like some explanation of the committee on 
Rules in regard to that rule. The question of order is 
always debatable in any body I was ever in. I move to 
strike out that part of that rule in regard to the priority 
of business. (Seconded). 

The CHAIR. It is moved and seconded, gentlemen, 
that that portion of Rule 36 which declares that questions 
or motions relating to the priority of business shall not 
be debatable, be stricken out. The question is before the 
convention for debate. (Vote). The motion is carried. 
That portion of the rule is stricken out. 

(The reading of the rules proceeds without objection, as fol- 
lows:) 

AMENDMENTS. 

RULE 37. No motion or proposition upon a subject differing 
from that under consideration, shall be admitted under color of 
amendment. 

RULE 38. A motion to strike out and insert shall be deemed 
divisible; and a motion to strike out on a division being negatived, 
or a motion to insert being decided in the affirmative, shall be 
equivalent to agreeing to a matter in that form, but shall not 
preclude further amendment, provided, that substitutes for pend- 
ing propositions shall for the purpose of amendment, be treated 
as original propositions. 



52 REPORT OF COMMITTEE ON RULES 

RECONSIDERATION. 

RULE 39- A motion to reconsider must be made by a mem- 
ber voting with the prevailing side, and such motion, to be in 
order, must be made within the next day of actual session of the 
convention after such vote was taken, and the same shall take pre- 
cedence of all motions except a motion to adjourn. 

QUESTIONS OF ORDER. 

RULE 40. If any member, in speaking or otherwise, trans- 
gress the rules of the convention, the President shall, or any 
member may, call him to order, and the member called to order 
shall take his seat, if required to do so by the President, until 
the question of order is decided. 

RULE 41. The President shall decide all questions of order 
subject to an appeal by any member, on which appeal, no member 
shall speak more than once, unless by permission of the con- 
vention, except the member appealing, who may speak twice, and 
the President may speak in preference to any member. 

RULE 42. If the decision be in favor of the member called 
to order, he shall be at liberty to proceed; if otherwise, he shall 
not be permitted to proceed, in case any member object, without 
leave of the convention. 

RULE 43. If a member call another to order for words 
spoken in debate, he shall, if required by the President, reduce 
to writing the language used by the member which he deemed out 
of order. 

OP COMMITTEES. 

RULE 44. It shall be in order ifor the committee on Enroll- 
ment and Revision to report at any time when the convention is 
not otherwise engaged. 

RULE 45. All reports of committees shall be signed by such 
of the members thereof as concur therein, and the report, with 
the name of the member or members signing the same, shall be 
read by the secretary or at the secretary's desk, by the members 
making the report, without a motion, unless the reading be dis- 
pensed with by the convention; where the report is unanimous it 
may be signed by the chairman alone. 

RULE 46. No committee shall sit during the daily sessions 
of the convention unless by special leave. 

COMMITTEES OF THE WHOLE. 

RULE 47. When the convention shall be ready to proceed 
with the orders of the day, a motion to go into committee of the 
whole convention on the orders of the day, shall have precedence 
of all other motions, except to adjourn, to take a recess and for 
the previous question. 



REPORT OF COMMITTEE ON RULES 53 

RULE 48. In forming a committee of the whole convention, 
the President shall leave the chair and appoint a chairman who 
shall preside, and vote as other members. 

RULE 49. In committee of the whole, propositions shall be 
read by the chairman or secretary, and considered item by item, 
unless it shall be otherwise directed by the committee, leaving the 
preamble, if any, last to be considered. The body of the propo- 
sition shall not be defaced or interlined, but amendments shall be 
noted by the chairman or secretary, upon a separate piece of 
paper, as the same shall be agreed to by the committee, and so 
reported to the convention. 

After being reported, the propositions, with amendments thereto 
of the committee of the whole, shall be immediately taken up 
for consideration, unless it shall be otherwise ordered by the con- 
vention and again be subject to discussion or amendment before 
the question to engross for final reading shall be taken. 

RULE 50. The rules of the proceeding in committee of the 
Whole shall be the same as in the convention, so far as may be 
applicable. 

RULE 51. All reports of committees, containing matter to 
be incorporated in the constitution, shall be considered in the 
order in which the reports are made, and upon their introduction 
and full reading before the convention, such matter to be in- 
corporated shall lay upon the table, and be printed, and when 
printed shall be placed on the calendar to be considered in the 
committee of the Whole. 

RULE 52. When such proposition shall have been considered 
in committee of the Whole and amendments proposed thereto have 
been disposed of by the convention, the question shall be on order, 
ing the proposition to a final reading and fixing the time, thereof. 

RULE 53. So soon as any entire proposition- for incorporation 
in the constitution shall have been disposed of, such proposition, if 
agreed to by the convention, shall be referred to the committee 
on Revision, to be by that committee embodied in the constitution. 

The committee shall have full power to revise the language 
used in the various propositions, and arrange the same so as to be 
clearly expressive of the sense of the convention, and to make 
the instrument complete and consistent with itself. 

RULE 54. The committee on Revision having completed its 
revision as provided in the preceding rule, shall report the article 
or articles of the constitution to the convention, when it shall 
be fully read, and when it is thus read, the question shall be on 
agreeing to the article or articles so amended and revised, and if the 
same shall be decided in the affirmative, the constitution as a 
whole shall be carefully enrolled under the supervision of the 
committee on Enrollment and Revision and signed by the presi- 
dent and members of the convention. 



54 REPORT OF COMMITTEE ON RULES 

RULE 55. The final vote upon agreeing to each proposition, 
and upon agreeing to the instrument as a whole, shall be taken 
by the yeas and nays, and no such proposition shall be considered 
as agreed to, nor the instrument as a whole except a majority of 
the delegates present vote therefor. 

RESOLUTIONS. 

RULE 56. Resolutions giving rise to debate shall lay over 
"one day before being acted upon, if, upon their introduction, any 
member shall give notice of a desire to discuss the proposition 
therein contained. 

RULE 57. No compensation shall be voted to any officer, 
employe or appointee of the convention, other than fixed originally 
by resolution, and this rule shall not be altered or suspended ex- 
cept on three days' notice and by a two-thirds vote of the mem- 
bers elected to the convention. 

CALENDAR. 

RULE 58. A calendar of each successive day's business shall 
be prepared by the secretary, printed and laid upon the desk of 
each member every morning. 

Upon such calendar all propositions for final readings and all 
special orders shall be placed in the order of priority in which the 
order is made. 

Propositions for a final reading on a particular day, not reached 
on that day, shall be placed first upon the calendar in the order 
of final reading of each succeeding day until disposed of. No 
proposition found upon the calendar shall be taken up and read 
by the secretary out of its order thereon, except by direction of 
the convention. 

ON RULES OP THE CONVENTION. 

RULE 59. These rules shall not be altered, except after at 
least one day's notice of intended alteration, and then only by a 
vote of the majority of those elected to the convention, and no 
rule shall be suspended except by two-thirds of those present. 

RULE 60. Cushing's Manual and Law of Legislative Assem- 
blies shall be received in all cases not provided for in the fore- 
going rules. 

OFFICIAL OATH. 

Each member of the convention shall take the following oath: 

You do solemnly swear (or affirm) that you will support the 

constitution of the United States, and will faithfully discharge 

your duties as a member of this convention, convened for the 

purpose of framing a constitution for the State of Idaho. 



PROPOSED COMMITTEE TO DRAFT CONSTITUTION 55 

And each officer and attache of the convention shall take the 
following oath : 

You do solemnly swear (or affirm) that you will support the 
constitution of the United States and will faithfully discharge 
your duty as an officer of this .convention. 

The CHAIR. What is your pleasure, gentlemen, in 
reference to the report of the committee on rules? 

PROPOSED COMMITTEE TO DRAFT CONSTITUTION. 

Mr. KING. Mr. President, before proceeding fur- 
ther, I would like to make a motion. We have now no 
form of a constitution before us for discussion. Under 
our present proceedings, I do not see that there is any 
probability of there being a form of constitution pre- 
sented until we obtain the reports of the various 
committees. Therefore, we shall have to wait for 
some time. When these various committees make 
their reports, a constitution will be blocked out, you 
may say, ready to be presented to the convention. 
It is not probable, I think, that a constitution 
will be presented that will be acceptable to 
all the members. There will be a great many provisions 
in any constitution that may be presented that will not 
meet with the views of certain of the members, and 
each one will propose to make an amendment. Now, if 
we have to wait a number of days before this draft of 
the constitution is presented before us, we are losing 
time. I think we can gain time by appointing a commit- 
tee to examine the various constitutions that have been 
adopted by our states, especially those states that are 
situated as we are with large canals on arid land and 
large blocks of mountains. Our industries are the same. 
They have adopted constitutions which have suited them 
very well. They have made the various amendments 
that experience has demonstrated to be necessary. If we 
had some of those constitutions to let the committee 
select what they consider the best and present it to 
this convention, then amendments can be sent to the 
proper committee for their report, and in that way we 
can get a constitution quicker, I think, than we can do it 
if we wait until those committees each report on their 



56 PROPOSED COMMITTEE TO DRAFT CONSTITUTION 

departments. For instance, take the labor or the legis- 
lative departments, and take each one through the var- 
ious appointments, if a person wishes to make an amend- 
ment, it will have to go back to the original committee 
for its consideration, then all decide upon it. But if we 
take up a constitution and make amendments to it, and 
then refer it to that committee — I therefore make a mo- 
tion that the president appoint a committee of five to 
prepare a draft of a constitution and present it to this 
house at the earliest moment possible for their considera- 
tion. 

The CHAIR. Is there a second for the motion? 

Mr. POE. I think the gentleman is out of order in 
making the motion at this time. Already committees 
are provided on each branch of the constitution, whose 
province it is to draft a form of constitution on the 
questions submitted to them. I move that the report of 
the committee on Rules be adopted as amended. (Sec- 
onded). 

The CHAIR. It is moved and seconded, gentlemen, 
that the report of the committee on Rules be adopted by 
the convention as amended. (Vote). The motion is 
duly carried. 

Mr. KING. I move that a committee of five be ap- 
pointed to prepare a draft of a constitution and present 
it to the consideration of this convention at the earliest 
possible moment. (Seconded). 

Mr. AINSLIE. Mr. Chairman, I do not see any ne- 
cessity for any such committee. We have already adopt- 
ed the report of the committee on Committees and pro- 
vided a number of committees to draft a constitution. 
Every member of this convention will be on probably 
three of these committees. If they desire, they can ex- 
amine and compare all the constitutions from Maine to 
Texas, and make such provisions on the subjects appor- 
tioned to them as they think necessary. What is the 
use of making a supernumerary committee of five? Each 
of these committees will be a large committee- The 
province of each will be a branch of the constitution 



INCREASE OF JUDICIARY COMMITTEE 57 

that they are to frame on the questions they represent. 
Therefore, I say that the appointment of five or ten is 
to do away with these other committees. Now, I heard 
a member remark the other day, which is sensible, that 
the more committees we have the better, but you already 
have the committees appointed, and each will be engaged 
in doing the work all at once. If any member desires 
to make any number of suggestions in regard to any 
matter, it is easy for him to present the same before the 
committee in charge. It would be an endless matter to 
settle all these things in this convention. 

Mr. MAYHEW. Now I certainly would be opposed 
to having a constitutional committee to draft a constitu- 
tion as proposed by my friend King. It would be doing 
away with all we have done. I can only say it would be 
doing away with all the labor and work that all these 
committees are to do. The only safe way we can do is 
to consider a constitution presented by the committees 
appointed by this convention. And as the gentleman sug- 
gests, we would never get through in the world if a 
committee of five should draw a constitution and after- 
wards report bodily. There would hardly be a member 
who would not have an amendment to make. Now I 
certainly would be opposed to the appointment of a 
committee as suggested by the gentleman from Shoshone. 
(Question). 

The CHAIR. You have heard the motion made by 
the gentleman from Shoshone, namely, that the chair 
appoint a committee of five to report the form of a con- 
stitution for the convention. (Vote). The noes have itl 
The motion is lost. 

This closes, so far as the chair has any knowledge, 
all the unfinished business, with the exception of what 
is necessary under the rules adopted by the convention, 
namely, that the members of the convention and officers 
be sworn. 

INCREASE OF JUDICIARY COMMITTEE. 

Mr. MAYHEW. Before this I will send a motion up 
to the clerk's desk that is necessary to be made now. 



58 INCREASE OF JUDICIARY COMMITTEE 

SECRETARY reads: Mr. President, I move that 
the Judiciary committee be increased to the number of 
fifteen members. A. E. May hew. (Seconded.) 

Mr. MAYHEW. I desire to state to the convention 
my object in making the motion to increase the Judiciary 
committee to fifteen. I have talked to quite a number 
of the members of the convention and they agree with 
me upon the proposition that the Judiciary committee 
is a committee that will have more labor to perform 
than any other committee here, and it is necessary to 
have as many members upon that committee as we can 
consistently have in order to facilitate the business be- 
fore that committee. It would have this tendency, Mr. 
President: The Judiciary committee, when they make 
their report, that portion which is to be incorporated 
in the constitution — it will have this effect, to prevent 
so much discussion in the committee of the whole and 
so many amendments to be made of the report of the 
Judiciary committee. I think the convention will be 
much benefitted by having the Judiciary committee in- 
creased to the number of fifteen, and then when the 
committee meets, they can be subdivided among them- 
selves on the different questions, and aid them very ma- 
terially in making their report. They could make three 
divisions of that committee, if necessary. I hope that 
motion will prevail. 

The CHAIR. It is moved and seconded that the Ju- 
diciary committee reported by the committee on Rules, 
be increased from nine to fifteen. 

Mr. BEATTY. I desire to suggest in connection with 
that that the chair appoint the committee. 

Mr. MAYHEW. Why, certainly, the resolution 
means that. 

Question put and the motion is carried. 

The CHAIR. I would suggest that it has been by 
unanimous consent that the report of the committee on 
Rules is amended to the extent of this increase. The 
rules call for a committee of nine. 



SWEARING IN MEMBERS 59 

RESOLUTION TO PRINT RULES. 

Mr. SAVIDGE. I desire to submit the following- 
resolution to the convention and move its adoption: Re- 
solved, That 200 copies of the rules governing this con- 
vention be printed in pamphlet form for the use of mem- 
bers, with the names of the members and their post- 
office addresses given, with the names of the standing 
committees. W. H. Savidge. (Seconded). 

The CHAIR. Gentlemen, you have heard the motion* 
All those in favor of its adoption will signify by saying 
aye. 

Mr. BEATTY. Please read the motion again. I 
did not catch it all. 

SECRETARY reads. (Vote). 

The CHAIR. The ayes have it. The resolution is 
adopted. 

Mr. MAYHEW. Now, Mr. President, I desire to 
ask for information. The report of the committee on 
Standing Committees was adopted this afternoon. I 
think it is necessary, if I am right, that those commit- 
tees by an amendment should be inserted in the rules 
just adopted. It seems they are not adopted by the 
rules. They ought to be inserted in the rules. 

The CHAIR. That is not necessary. 

Mr. BEATTY. It seems to me that the next thing 
in order is to know whether our standing committees 
are yet selected, and if so, that they may be announced 
in order that they may get to work as speedily as pos- 
sible. I know of nothing more important to come before 
the convention until we know how the committees are 
constituted. 

SWEARING IN MEMBERS. 

Mr. RE ID. Mr. President, I will state that we re- 
ceived yesterday evening the numbers on committees ap- 
portioned to the democrats. They met in caucus this 
morning and got about half through when the time for 
the meeting of the convention arrived and we adjourned 
until this session shall have been finished, when they 



60 SWEARING IN MEMBERS 

will meet, and I think they can get through in an hour. 
I think the next order of business before we can trans- 
act any business at all would be the swearing of the 
members. 

The CHAIR. That was the idea of the chair. I will 
state to the convention that the chair has directed the 
sergeant-at-arms to see whether the Chief Justice, Mr. 
Weir, is in the building, and if so, I think it is advisable, 
at least it is not compulsory under the rules, but I think 
it is necessary that the oath of office be administered 
according to the rules before we proceed any further. 

The chair is informed that the Chief Justice, Mr. 
Weir, is at the adjoining building, and I wait the pleas- 
ure of the convention as to whether we shall wait for him 
now or take a recess, which will enable the standing 
committees to fix a time for meeting. 

Mr. AINSLIE. I move that a committee of three be 
appointed to wait on the Chief Justice and ask his per- 
sonal attendance on the convention at 2 o'clock this af- 
ternoon, and that the convention adjourn until that hour. 
(Seconded). 

The CHAIR. All those in favor of the motion, sig- 
nify it by saying aye; contrary, no. The ayes have it. 

Wait a moment, gentlemen, and I will appoint that 
committee before the members leave their seats. The 
chair will appoint as such committee, to wait upon the 
Chief Justice, Mr. Ainslie of Boise, Mr. McConnell of 
Latah and Mr. King of Shoshone. Gentlemen, the con- 
vention will now take a recess until 2 o'clock this after- 
noon. 

AFTER RECESS. 

2:00 P. M. 
The CHAIR. The convention will come to order. I 
am informed that the Chief Justice is in the lower story 
and will be here in a moment, and we will simply sus- 
pend all proceedings until he arrives. I will state, gen- 
tlemen of the convention, that if there is any delegate 
nresent who has any conscientious scruples about taking 



EMPLOYMENT OF ADDITIONAL CLERKS 61 

an oath and prefers to affirm, I hope he will make it 
known before the Chief Justice comes so that the affirm- 
ations will be administered to him, or them, separately. 

Gentlemen, of the convention, the time has arrived 
when the members of the convention and the officers of 
the convention will be sworn according to the rules. You 
will please rise and have the oath administered to you. 

CHIEF JUSTICE WEIR. You do solemnly swear 
that you will support the constitution of the United 
States and will faithfully discharge your duties as mem- 
bers of this convention, convened for the purpose of 
framing a constitution for the state of Idaho. 

The CHAIR. The officers of the convention will 
please come forward and be sworn. 

CHIEF JUSTICE WEIR. You and each of you 
solemnly swear that you will support the constitution of 
the United States and will faithfully discharge your 
duties as officers of this convention. 

A MEMBER. Mr. President, I think there are one 
or more members who were not present when the oath 
was administered to the members on the floor. I know 
of one gentleman sitting at my right, and perhaps there 
may be more. It will be well to inquire, anyway. 

The CHAIR. Is there any member of the convention 
who has come in since the oath has been administered? 
If so, they will rise and be sworn. 

(Mr. Lemp rises and Chief Justice administers same 
oath). 

EMPLOYMENT OF ADDITIONAL CLERKS. 

Mr. BEATTY. It has been suggested to me, Mr. 
President, by the secretary, that he needs another assist- 
ant clerk, and after consultation with a number of the 
members, I move you, if it be now in order, that Miss 
Carrie Sweet of this city, be elected second assistant 
clerk. 

The CHAIR. Is there any second to the motion? 
(Seconded). 

Mr. BEATTY. I desire to state in that connection, 



62 PETITION FROM W. C. T. U. 

in deference to my democratic friends, I understand the 
lady is of democratic persuasion. 

The CHAIR. It is moved and seconded, gentlemen, 
that Miss Carrie Sweet be elected by acclamation as 
second assistant secretary of this convention. (Vote). 
The ayes have it and Miss Sweet is elected. 

SUPPLIES FOR CONVENTION. 

The CHAIR. There is another matter here of some 
practical importance, and that is the purchase of a large 
water cooler and ice for the use of the convention. The 
weather is warm and when we get fairly to work here 
with the committees in this room, it will be necessary 
to have this convenience, and I am informed by the ser- 
geant-at-arms that there is none in the building. If 
some member will make the proper resolution to obtain 
one, it will meet with my approval. 

Mr. McCONNELL. Mr. Chairman, the doorkeeper 
informs me that there is no oil, and in case committees 
wish to meet at night, some provisions should be made 
for lighting the hall. 

Mr. GRAY. Mr. President, it will take some little 
time to arrange this matter. It can be arranged tomor- 
row. 

The CHAIR. If there is no objection, we will con- 
sider the motion seconded. 

It is moved and seconded that the sergeant-at-arms 
be instructed to procure a large water tank and ice and 
oil for lighting the hall during the sitting of this con- 
vention. ( Carried ) . 

PETITION FROM W. C. T. U. 

The CHAIR. The chair has received the following 
communication addressed to him, but intended to be a 
petition to the convention. Mr. Secretary, will you please 
be kind enough to read it? 

SECRETARY reads: Boise, Idaho, July 6, 1889. 
Dear Sir: The Woman's Christian Temperance Union 
of Idaho respectfully asks that the constitutional con- 



RESOLUTIONS ON THE DEATH OF COL. WOOD 63 

vention will receive them Tuesday morning at 10.00 
o'clock for the purpose of presenting for their kind con- 
sideration two resolutions. I, as the President for Idaho, 
make this request on behalf of the Women's bands of 
Idaho and trust it may be received. Mrs. H. Skelton. 

The CHAIR. There is no standing committee of the 
convention organized to whom it would be appropriate to 
refer this petition and the matter is therefore in the 
hands of the house. 

Mr. AINSLIE. I move that the communication lie 
on the table until the committees are announced so that 
it can be referred to the proper committee. (Seconded). 

The CHAIR. If there is no objection, that action will 
be taken. There is no objection. The petition will lie 
upon the table temporarily. 

RESOLUTIONS ON THE DEATH OF COL. CHARLES. A. WOOD. 

Mr. AINSLIE. Mr. President, if there is nothing 
before this body, I have an announcement I would like 
to make, one that I make with feelings of sorrow. Since 
the members of this convention were elected, a majority 
of them, we have received the news of the death of one 
of the most eminent of those who were chosen to repre- 
sent this convention ; a man whose acquaintance I had 
the pleasure of forming a number of years ago; one 
whom I practiced with at the bar in the lower courts 
as well as in the supreme court; a man who served his 
country during the war of the rebellion faithfully and 
well; a man who has served his people in every capacity 
to which he has been called, with honor to them and 
credit to himself. I refer to Col. Charles A. Wood, a 
man whose name is synonymous with honesty and in- 
tegrity; whose ability recommended him to the people 
of the section in which he lived, but whose name was 
known throughout the whole extent of the northwest as 
a lawyer and statesman, a soldier and a gentleman of 
the highest order. Nothing that I can saw now can add 
to his fame, and nothing I can say can detract from his 



64 LIST OF MEMBERS OF STANDING COMMITTEES 

character. I have the honor, Sir, to present the follow- 
ing resolution to be acted upon by this body. 

(Resolution was handed to the secretary's table). 

SECRETARY reads: 

Whereas announcement has been made of the death of Col. 
Chas. A. Wood, who at the time of the sad event was a member 
elect of this body, 

Resolved, That this convention receives with profound regret 
the sad news of his death, that by it this territory has been de- 
prived of one of its most prominent citizens, a man of eminent 
ability as a lawyer; a ripe scholar and an experienced legislator; 
a man broad and liberal in his views; of a genial and whole- 
souled nature; beloved by all who knew him, and one whose 
patriotism and judgment could be relied upon under any and all 
circumstances. His death is a loss restricted to no county nor 
section in particular, but a loss to our whole territory. 

Resolved, That we deeply deplore his death, and while de- 
prived of his valuable aid and counsel in the work before this 
body, we bow in humble submission to the inscrutable decree of 
Divine Providence, and invoke for his stricken family in their 
bereavement that consolation which can come only from an All- 
Merciful Creator. 

Resolved, That these resolutions be spread upon the records 
of this convention, and certified copies of the same be furnished 
the public press and the widow of our departed friend. 

Mr. GRAY. Mr. Chairman, I second the adoption of 
the resolution. 

The resolutions are adopted by the convention. 

Mr. POE. Mr. President, before the Chief Justice 
leaves, there are some members who have come in that 
have not been sworn and they should be sworn. 

The CHAIR. If there is any member of the con- 
vention who has not been sworn in, will he please rise 
and the Chief Justice will administer the oath. 

(Members rise and the Chief Justice administers the 
same oath). 

LIST OF MEMBERS OF STANDING COMMITTEES. 

The CHAIR. Gentlemen of the convention, I will 
read the list of standing committees of the convention : 

WAYS AND MEANS. 

Sol Hasbrouck Washington County 

Edgar Wilson Ada County 



LIST OF MEMBERS OF STANDING COMMITTEES 65 

J. M. Shoup Custer County 

J. I. Crutcher Owyhee County 

Frank Harris Washington County 

H. B. Blake Latah County 

EXECUTIVE DEPARTMENT. 

George Ainslie Boise County 

I. N. Coston Ada County 

John S. Gray Ada County 

J. W. Poe ..Nez Perce County 

W. H. Savidge Bingham County 

W. C. B. Allen Logan County 

H. S. Hampton Cassia County 

LEGISLATIVE DEPARTMENT. 

John T. Morgan Bingham County 

A. J. Pinkham Alturas County 

W. D. Robbins Latah County 

John Lewis Oneida County 

S. S. Glidden Shoshone County 

H. B. Blake Latah County 

P. J. Pefley Ada County 

A. J. Pierce Custer County 

Homer Stull Elmore County 

JUDICIARY. 

W. B. Heyburn Shoshone County 

Willis Sweet Latah County 

James H. Beatty Alturas County 

Edgar Wilson Ada County 

J. M. Howe Nez Perce County 

A. E. Mayhew Shoshone County 

George Ainslie Boise County 

W. W. Woods Shoshone County 

J. W. Reid Nez Perce County 

Homer Stull Elmore County 

Frank Harris ., Washington County 

0. B. Batten Alturas County 

H. S. Hampton Cassia County 

John T. Morgan Bingham County 

W. H. Savidge Bingham County 

PREAMBLE AND BILL OF RIGHTS. 

James M. Shoup Custer County 

John T. Morgan Bingham County 

D. W. Standrod Oneida County 

W. W- Hammell Shoshone County 



66 LIST OF MEMBERS OF STANDING COMMITTEES 

Chas. A. Clark Ada County 

F. Steunenberg Ada County 

NAMES, BOUNDARIES AND ORGANIZATION OF COUNTIES. 

J. W. Reid Nez Perce County 

G. W. King Shoshone County 

E. S. Jewell Washington County 

A. J. Crook Custer County 

Sol Hasbrouck Washington County 

SEAT OF GOVERNMENT, PUBLIC INSTITUTIONS, BUILDINGS AND 

GROUNDS. 

Frank P. Cavanah Elmore County 

J. I. Crutcher Owyhee County 

H. B. Kinport Bingham County 

P. M. McMahon Alturas County 

John S. Gray Ada County 

W. J. McConnell Latah County 

H. Melder Kootenai County 

EDUCATION, SCHOOLS AND UNIVERSITY LANDS. 

0. B. Batten Alturas County 

James M. Shoup : Custer County 

A. J. Pinkham Alturas County 

H. O. Harkness Bingham County 

Henry Armstrong Logan County 

W. J. McConnell Latah County 

A. S. Chaney Latah County 

John Hogan Lemhi County 

A. D. Bevan Shoshone County 

ELECTION AND RIGHT OF SUFFRAGE. 

James H. Beatty Alturas County 

0. J. Salisbury Custer County 

W. B. Heyburn Shoshone County 

Charles M. Hays ....Owyhee County 

George Ainslie Boise County 

A. E. Mayhew Shoshone County 

F. W. Beane Bingham County 

REVENUE AND FINANCE. 

Charles M. Hays Owyhee County 

Willis Sweet Latah County 

Sol Hasbrouck Washington County 

A. J. Crook Custer County 

S, L. Glidden ,..„., Shoshone County 



LIST OF MEMBERS OF STANDING COMMITTEES 67 

H. B. Blake Latah County 

John Hogan Lemhi County 

J. W. Lamoreaux Cassia County 

F. Steunenberg Ada County 

LEGISLATIVE APPORTIONMENT. 

James M. Shoup Custer County 

J. L. Underwood Bear Lake County 

W. B. Heyburn Shoshone County 

J. W. Ballentine Alturas County 

Thomas Pyeatt Lemhi County 

W. A. Hendryx Kootenai County 

J. S. Whitton Logan County 

J. W. Brigham Latah County 

Charles M. Hays Owyhee County 

W. C. Maxey Ada County 

J. H. Myer Boise County 

H. B. Kinport Bingham County 

A. F. Parker Idaho County 

Homer Stull Elmore County 

J. W. Poe Nez Perce County 

J. W. Lamoreaux Cassia County 

D. W. Standrod Oneida County 

E. S. Jewell Washington County 

MILITIA AND MILITARY AFFAIRS. 

W. W. Hammell Shoshone County 

Thomas Pyeatt Lemhi County 

Fred Campbell Boise County 

A. J. Pinkham Alturas County 

C. A. Clark Ada County 

J. H. Myer Boise County 

John Hogan Lemhi County 

PUBLIC AND PRIVATE CORPORATIONS. 

A. E. Mayhew Shoshone County 

H. B. Kinport Bingham County 

A. S. Chaney Latah County 

A. D. Bevan Shoshone County 

J. W. Ballentine Alturas County 

N. I. Andrews Lemhi County 

W. H. Savidge Bingham County 

S. S. Glidden Shoshone County 

S. J. Pritchard Owyhee County 

FEDERAL RELATIONS. 

Willis Sweet Latah County 

0. J. Salisbury Custer County 



68 LIST OF MEMBERS OF STANDING COMMITTEES 

A. B. Moss Ada County 

T. F. Nelson Idaho County 

Robert Anderson Bingham County 

MUNICIPAL CORPORATIONS. 

W. W. Woods Shoshone County 

Albert Hagan Kootenai County 

A. J. Pierce Custer County 

P. J. Pefley Ada County 

L. Vineyard Alturas County 

James H. Beatty Alturas County 

H. O. Harkness Bingham County 

A. J. Crook Custer County 

Edgar Wilson ;. Ada County 

LABOR. 

Henry Armstrong Logan County 

A. M. Sinnott Elmore County 

J. M. Howe Shoshone County 

W. B. Heyburn Shoshone County 

W. D. Robbins Latah County 

G. W. King Shoshone County 

J. W. Lamoreaux Cassia County 

P. McMahon '. Alturas County 

P. J. Pefley Ada County 

SCHEDULE. 

John S. Gray Ada County 

Willis Sweet Latah County 

J. M. Howe Nez Perce County 

W. W. Woods Shoshone County 

W. H. Savidge Bingham County 

H. S. Hampton Cassia County 

F. W. Beane Bingham County 

H. B. Blake , Latah County 

L. Vineyard Alturas County 

MANUFACTURES, AGRICULTURE AND IRRIGATION. 

Homer Stull Elmore County 

I. N. Coston Ada County 

E. S. Jewell Washington County 

F. W. Beane Bingham County 

S. F. Taylor Bingham County 

W. C. B. Allen Logan County 

W. J. McConnell Latah County 

H. O. Harkness Bingham County 

A- B. Moss , Ada County 



LIST OF MEMBERS OF STANDING COMMITTEES 69 

MINES AND MINING. 

J. I. Crutcher Owyhee County 

F. P. Cavanah Elmore County 

A. D. Bevan Shoshone County 

G. W. King Shoshone County 

D. W. Standrod Oneida County 

S. S. Glidden Shoshone County 

J. W. Ballentine Alturas County 

0. J. Salisbury Custer County 

Chas. M. Hays Owyhee County 

LIVE STOCK. 

H. O. Harkness Bingham County 

J. L. Underwood Bear Lake County 

Thomas Pyeatt Lemhi County 

J. H. Myer Boise County 

A. J. Pierce Custer County 

PRINTING AND BINDING. 

W. C. B. Allen Logan County 

Chas. M. Hays Owyhee County 

John Lemp Ada County 

A. M. Sinnott Elmore County 

C. A. Clark Ada County 

A. F. Parker Idaho County 

F. Steunenberg Ada County 

REVISION AND ENROLLMENT. 

James H. Beatty Alturas County 

W. W. Hammell Shoshone County 

John T. Morgan Bingham County 

James M. Shoup Custer County 

J. M. Howe . Nez Perce County 

Albert Hagan Kootenai County 

L. Vineyard .'...Alturas County 

Frank Harris Washington County 

D. W. Standrod Oneida County 

SALARIES OF PUBLIC OFFICERS. 

• J. W. Poe Nez Perce County 

1. N. Coston Ada County 

J. W. Reid Nez Perce County 

Edgar Wilson ...: Ada County 

Sol Hasbrouck Washington County 



70 MEETINGS OF COMMITTEES 

PUBLIC INDEBTEDNESS AND SUBSIDIES. 

A. Hagan Kootenai County 

0. B. Batten Alturas County 

S. F. Taylor Bingham County 

W. J. McConnell Latah County 

H. O. Harkness Bingham County 

The CHAIR. What is the pleasure of the conven- 
tion? There is no business before it that I Know of. 

MEETINGS OF COMMITTEES. 

Mr. BEATTY. I have a motion to offer and report 
to the secretary. I will read my motion, however. I 
move that the committees on the Executive, Legislative 
and Judiciary Departments, Preamble and Bill of Rights, 
Education, Election and Suffrage and Public and Private 
Corporations, be instructed to meet immediately on re- 
cess or adjournment of this body and continue in session 
from day to day until the completion of their labors. 

That any member of said committee who is chairman 
of other committees may be excused when they desire to 
attend meetings of such other committees. 

If I can get a second to that motion, I will give my 
reasons. ( Seconded ) . 

Mr. BEATTY. Mr. President, my object in offering 
that motion is to save time, if possible. We have, as we 
are all aware, a great many committees, more almost, it 
seems to me, than can work to advantage. If you will 
look over the roll of those committees, you will find that 
it amounts to nearly 200 committeemen — 180 or 190, ac- 
cording to my count, and we have forty odd members 
present. The result is every gentleman is on from two 
to four committees, and I, for one, do not like to divide 
myself up into pieces, and I don't see how we can divide 
ourselves around and fill all those committees. Now, in 
offering this motion, I have selected the six or seven com- 
mittees that I think will have the principal work to do. 
If it is understood that those committees have the pre- 
cedence and shall continue to work regardless of whether 
the other committees get to work immediately or not, we 
will clean up the principal part of the work of the prin- 



MEETINGS OF COMMITTEES 71 

cipal committees, and from day to day the other com- 
mittees, who have less to do, can put in the time as much 
as possible. Now, if we take a recess today and adjourn 
without any understanding as to what we are to do, it 
seems to me we will have no place to begin. That is, 
there is no place designated as to where these com- 
mittees shall meet and we will lose a great deal of time. 
It strikes me that when the work of these six or seven 
committees shall have been completed, we shall have 
substantially a constitution, or the provisions most im- 
portant. I make the motion with a view to saving time 
and getting down to work at once. I have made it after 
but little reflection, but with the idea that other members 
may make some suggestion as to what is the better mode 
of getting to work at once and working as speedily and 
rapidly as possible, for I know that most of us desire to 
get through this work as quickly as we can and get home, 
but do our work properly. Now, there are a number 
of these committees who have very little to do and they 
might wait a few days until these more important com- 
mittees get their work off of their hands. There is a 
committee, for instance, on revision which will have con- 
siderable work to do, but their work will not commence 
for several days. If there are any suggestions better 
than that motion, I would be glad to hear them. 

Mr. MAYHEW. Mr. President, I would like to hear 
that motion read again. 

SECRETARY reads the resolution. 

Mr. GRAY. The only trouble I see is, we do not in 
the reading from the President — that we do not hardly 
know exactly what committees we are on, and if we 
could have our list published, we would understand it 
better. In the hasty reading — perhaps it was neglect on 
my part — I do not know what committees I am on. It 
would be better that we should have our list before we 
act in the matter. Although I am ready to do anything 
so far as concerns any committee I am on. 

The CHAIR. So far as these committees are con- 
cerned in this resolution, there will be next week in the 



72 MEETINGS OF COMMITTEES 

hands of the chairman of each committee, a list, and 
notifying the gentlemen of this convention. 

Mr. MAYHEW. It strikes me that this motion con- 
tains instructions to the committees that they shall meet 
immediately after recess or adjournment for the day, 
and go into session. It has always been my idea from 
such little knowledge I possess, that the committees 
have a right to meet at just such times as they please 
without any instructions from the body. It is to be pre- 
sumed that when a member is placed upon a committee, 
that he is always ready to perform his duty at the call 
of the committee at any time. Now if that motion should 
prevail, it seems to me that it certainly will conflict with 
the meeting of the convention every day here. Now it 
strikes me very forcibly that it should be with the com- 
mittees themselves to say when they shall meet and 
adjourn, not that this committee, or these different com- 
mittees, shall be instructed by this convention when they 
shall meet. I venture to say that in any well directed 
body anywhere, a committee has control of the time, 
place and adjournment of its meetings without any in- 
structions from the main body of the convention itself. 
For one, I shall oppose that resolution, and do not see 
that I can vote for it, because it is imposing upon the 
committee a direction from this convention that I don't 
think should be placed upon the gentlemen. I trust and 
hope that the committees when they meet, will be al- 
lowed to meet at their own pleasure and adjourn at their 
own pleasure and not be under the control of the con- 
vention. 

Mr. McCONNELL. I think the motion is a move in 
the right direction. As has been noticed, a number of 
members are on different committees and I presume the 
chairmen of those committees will endeavor to get their 
committees together as soon as possible. Then it will be 
a question for each individual member to determine, 
which committee he will visit, and it may be possible, 
under that state of affairs, it will be very difficult for 
those committees to get a quorum. I do not know that 



MEETINGS OF COMMITTEES 73 

it is the view of this body that they shall act at any par- 
ticular time, but it should be generally understood that 
tne members who belong to those committees shall come 
there to these meetings, and if it is possible, that the 
work can be apportioned out so that they can attend 
other committees, it should be done. 

Mr. AINSLIE. I am like the delegate from Sho- 
shone — I don't exactly like that resolution. I don't think 
it is the policy of the convention to instruct the commit- 
tee, but refer a matter to it and instruct them to report. 
But a committee of a legislative body is a great deal like 
the Czar; meet at their own pleasure and adjourn as they 
please. If that motion is changed to a request for these 
committees to meet after the adjournment of the con- 
vention as soon as they can, I will be in favor of it; but 
as a command, I oppose it. 

Mr. WILSON. I move an amendment to the motion 
of the gentleman from Alturas, that after the adjourn- 
ment of this body today, these committees referred to in 
that resolution meet, and thereafter those committees 
and all other committees direct the time and place of 
their own meetings. 

Mr. REID. Mr. President, I shall support the 
amendment of the gentleman from Ada. A distinguished 
friend of mine is chairman of the committee on Corpor- 
ations; he will also be on the Judiciary committee. The 
purport of the resolution is that we continue in session 
those committees. Now the committee on Corporations 
will be deprived of his services as chairman or the com- 
mittee on Judiciary will be deprived of his services. I 
make this suggestion because you will find this conflict 
in other cases. These committees should get together 
and regulate their meetings as is generally done in legis- 
lative bodies. 

The CHAIR. Do I understand the gentleman from 
Boise to make his suggestion in the shape of a motion 'to 
amend? 

Mr. AINSLIE. As an objection. 



74 MEETINGS OF COMMITTEES 

The CHAIR. Will the gentleman from Ada please 
state his amendment? 

Mr. WILSON. I move to amend Judge Beatty's mo- 
tion, that when this body takes a recess today, all the 
committees referred to in his motion shall meet, and that 
thereafter those committees and all other committees 
shall regulate the time and place of their own meetings. 

Mr. BEATTY. Mr. President, I can't see that the 
amendment will amount to anything. 

The CHAIR. One moment. It is a very difficult 
matter to put this amendment in a motion. If the gen- 
tleman from Alturas will — 

Mr. BEATTY. I was about to suggest that the 
amendment would leave the matter just about as it now 
stands, and the gentleman, Mr. Reid, touched upon this 
question that this motion is intended to meet, which is 
that it is impossible for one man to be on two committees 
at the same time. I am aware of that, and it is utterly 
impossible, if we intend to have all of these committees 
meet at once, that anything can be done. My object is 
this : It is to get the committees so organized that as 
many members as possible of the committees can meet 
and in doing that, select the committees who have the 
principal work to perform. Now then, I would like some 
gentleman to suggest some better plan. If we adjourn 
from this body and we have no organized plan, what are 
we going to do? Here are twenty-five committees; each 
chairman will want his committee to get together; for 
the important man of the committee is the chairman, 
who may be anywhere. It will be utterly impossible to 
get them together. And so with the chairmen of the 
other committees. They will simply be adjourned from 
day to day and we will then get no work done. Now my 
position in this motion is that we can have the commit- 
tees which have the principal work to perform desig- 
nated as the committees that shall go to work at once, 
and then we will have the main part of our work under 
way. Now it is not designed, as a matter of course, 
by this motion, nor was it so expressed, that these com- 



MEETINGS OF COMMITTEES 75 

mittees must meet and be in continuous session. Any 
committee can adjourn to such hour as it pleases, but the 
idea is this, that they shall of others have the preference 
of the members. In other words, the committee of which 
my friend from Shoshone is chairman, cannot be en- 
titled to demand the presence of the members of his com- 
mittee when he is on the committees of those other six 
that I have mentioned. But I would be glad for any 
plan. I have felt from the start that we had too many 
committees. If we were a convention of 200 men, then 
we might make all our committees. But we have formed 
the committees and we must get at some plan by which 
we can get the committees together as soon as possible. 
Now I submit, if you will look over these six or seven 
committees which I have named, they have the most to 
do with framing the constitution; if those committees 
can get to work at once, it seems to me that in four or 
five days we will get a great deal of our work done. On 
the contrary, if the committees can do nothing without 
sending out for the chairmen, who are running around 
getting their committees together, it seems to me that 
we will be in a bustle for the next week to come. I in 
tended to have the sergeant-at-arms designate some 
rooms which the committees should go to. In any event, 
we haven't enough rooms for the 24 committees. If any 
member can propose any plan better, by which we can — 

Mr. ALLEN. The suggestion, it occurrs to me, is 
included in the amendment of the gentleman from Ada, 
that the important committees meet first; that they de- 
cide exactly their time and place of meeting and that 
they be obliged to attend. The room in which they are 
to meet, the hours in the day and the place where each 
committee is to hold its session or the hour of the session, 
and then let the other committees so arrange their time, 
when that is announced. 

Mr. WILSON. I will embody my amendment in the 
way of a substitute and ask for the reading of it from 
the clerk's desk. 



76 LEAVES OF ABSENCE 

The CHAIR. The clerk will first read the original 
resolution and then the substitute. 

CLERK reads. 

The CHAIR. Gentlemen, the question recurs first 
upon the substitute. (Vote). The substitute is adopted. 
What is the further pleasure of the house? 

Mr. MORGAN. Unless there is further business 
needing attention now, I move that the convention do 
now adjourn until tomorrow morning at 10:00 o'clock. 

Mr. MAYHEW. I think it would be advisable to 
have at once a list of the committees and the members 
of each committee published this evening so that we can 
have them tomorrow morning, and every member may 
know what committees he is on. 

The CHAIR. The committee on printing will look 
after that undoubtedly. It is their business. 

LEAVES OF ABSENCE. 

Mr. CAVANAH. I wish to be excused — a leave of 
absence for four days. 

The CHAIR. Four days? Gentlemen of the con- 
vention, Mr. Cavanah desires to be excused for a leave 
of absence for a period of four days. If there is no ob- 
jection, it will be taken that leave is given by unanimous 
consent. There is no objection to the leave. 

Mr. SWEET. Mr. President, I request a leave of 
absence for three or four days. 

The CHAIR. Gentlemen, the gentleman from Latah, 
Mr. Sweet, also desires or asks a leave of absence for 
three or four days. Is there any objection to this leave 
being granted? If there is none, it will be so ordered. 

Mr. ALLEN. I desire to ask leave of absence for 
one day. 

The CHAIR. If there is no objection, gentlemen, the 
gentleman from Logan, Mr. Allen, will be given leave 
of absence for one day. 

Mr. BEATTY. Before we adjourn, can't we have 
some understanding as to where these committees may 
meet? If we do not know, we will be in confusion and 



LEAVES OF ABSENCE 77 

not know where to meet. I would suggest that there are 
two rooms back of the stair, and one on the left there, 
and I suppose there are three in connection with the su- 
preme court room that are available. 

The CHAIR. I would suggest that the convention 
take an informal recess — take about fifteen minutes — 
and during that time the names of the gentlemen which 
have been referred to as chairmen of the several com- 
mittees, will take the committee lists of which they are 
chairmen and notify the members as they are now. They 
can be obtained from the lists here. And notify them 
also in regard to where the meeting shall be held. 

Mr. ALLEN. I will call for the names of the com- 
mittees that are instructed to meet immediately. 

The CHAIR. The secretary will read the names of 
the committees in the resolution adopted by the conven- 
tion. 

(Secretary reads). 

Mr. WILSON. Mr. President, I am on the Judiciary 
committee twice. That is too often for me. 

The CHAIR. By leave of the convention, I will 
just scratch out the name and put somebodr else in bis 
place. 

(Secretary reads W. H. Savidge on Judiciary com- 
mittee) . 

Mr. MORGAN. Mr. President, I move that the con- 
vention do now adjourn until tomorrow morning at 10:00 
o'clock. (Seconded and carried). 



FIFTH DAY. 

Tuesday, July 9, 10:00 A. M. 

The CHAIR. The secretary will call the roll. 

The CHAIR. The convention will come to order. 
Gentlemen, the chair requests, as a part of our daily ob- 
servance that the members of the convention will rise 
while the chalpain is imploring divine guidance. 

(Prayer by Chaplain). 



78 AUTHORIZING PRESIDENT TO ADMINISTER OATH 

Present: Messrs. Ainslie, Anderson, Batton, Beatty, 
Brigham, Clark, Coston, Crook, Gliddon, Gray, Hampton, 
Harris, Hays, Hogan, Jewell, Lewis, Maxey, McConnell, 
Melder, Meyer, Morgan, Pefley, Pierce, Pinkham, Poe, 
Pyeatt, Reid, Salisbury, Savidge, Shoup, Steunenberg, 
Stull, Taylor, Underwood, Vineyard, Whitton, Wilson, 
Mr. President. 

Excused: Allen, Cavanah, Heyburn, McMahon, 
Sweet. 

Thirty absentees. 

The CHAIR. By consent, the convention will pro- 
ceed with the order of business, although a quorum is 
not present. There is scarcely any significance in this 
case about proceeding. If there is no objection, we will 
proceed. The secretary will read the proceedings of the 
first two days of the convention. 

(Secretary reads). 

Mr. BEATTY. To save time, I suggest that the 
reading of the proclamation be omitted. We are all 
familiar with it. (Seconded and carried). 

The CHAIR. The secretary will omit the proclama- 
tion. 

Mr. REID. Mr. President, I ask the unanimous con- 
sent that the reading of that report by Mr. Heyburn, 
chairman of the committee on Committees, be omitted. 
It has been read and adopted and it has been published. 

The CHAIR. If there is no objection, it will be 
omitted. 

A MEMBER. Before proceeding with the regular 
order of business, I desire to make a motion. 

The CHAIR. I am informed by the secretary that 
he has not completed the reading of the minutes. 

(Secretary reads minutes of orders and proceedings. 
The reading of the minutes of the appointment of com- 
mittees of this convention was omitted). 

AUTHORIZING PRESIDENT TO ADMINISTER OATH. 

Mr. BEATTY. I move that the convention suspend 
the order of business for the purpose of making a motion 



AUTHORIZING PRESIDENT TO ADMINISTER OATH 79 

that the president be authorized to administer the oath 
of office to such members of the convention as may from 
this day arrive. I understand my colleague from Alturas 
county has arrived and he is here as a member of the 
convention. I make a motion, therefore, that the presi- 
dent be authorized to administer the oath of office to 
such members of the convention who have not already 
taken the oath. And it is suggested by the gentleman 
right here, to any future attaches of the convention. 

The CHAIR. If there is no objection, the rules may 
be considered suspended for the purpose of putting this 
motion. Gentlemen, you have heard the motion. 

Mr. MORGAN. Mr. President, it occurs to me that 
while we might authorize the president to administer 
this oath, there would be no law that would authorize us 
to do so, and at Washington they are very particular 
about these questions. They might question the au- 
thority to administer this oath. I only suggest this. We 
have, of course, in the building, several parties who are 
authorized to administer oaths, and it occurs to me that 
we might get ourselves into difficulties in this way. 

The CHAIR. Will the gentleman from Alturas re- 
duce his motion to writing? 

Mr. BEATTY. Mr. President, if there is any one in 
the building who will administer this oath, it will obvi- 
ate any necessity of this motion, but my object was to 
prevent the necessity of sending for the Chief Justice or 
other officer to administer this oath. I am doubtful of 
the suggestion of Judge Morgan, that this convention 
cannot authorize its presiding officer to administer such 
an oath. It is customary for the officers to administer 
oaths of this kind after taking the oath themselves. It 
is not a matter of sufficient importance to insist upon my 
motion. If there are any officers in the building that 
can be had from time to time to administer oaths, I will 
withdraw my motion. It is not a matter of importance 
at all. It is only to save time and inconvenience in send- 
ing for the Chief Justice that I made the motion. 

Mr. MAYHEW. Mr. President, I do not believe that 



80 AUTHORIZING PRESIDENT TO ADMINISTER OATH 

ever I heard, even, that the presiding officer of a delib- 
erative body of this kind had not the power to administer 
an oath. It is usually conceded by all bodies of this 
kind that the presiding officer, having once taken the 
oath, has the power and ability to administer the oath 
to any incoming member or absentee of that body. Now, 
so far as the meeting of this convention is concerned, we 
are here without any law. There is no act of this terri- 
tory for convening this convention, but we have met 
here by a proclamation, formed ourselves into a body, 
oath has been administered to us by the Chief Justice, 
and we are fully organized. The full organization of a 
convention or of a legislative body carries that always, 
and I may say that I cannot imagine any authority to 
the contrary — that the president or presiding officer of 
that body has not the power to administer the oath or 
affirmation for members or attaches. I insist upon the 
motion that the gentleman has made, that it is correct 
and that it is legal, and it is not necessary every time 
that a new member arrives or any future attache may 
be elected to perform any duty in this body, that we 
have got to send out for a notary public or the Chief 
Justice to administer an official oath. If the parties 
take that oath administered by the chief officer of this 
convention, it is administered by just as much authority 
and solemnity as any other way. I hope the motion will 
prevail. 

Mr. POE. My mode of business is always to be on 
the safe side. In the transaction of business, if there is a 
doubt in my mind as to which of two modes is the proper 
and right one, the one I know to be right and the other 
doubtful, I have always been disposed to adopt that 
which is certain and absolute. Now under our form of 
government, when the assembly has been called at any 
time, and we have organized ourselves as a meeting, 
under the parliamentary rules and usages we have a right 
to select a chairman, and because we select that chairman 
we may call upon some one to swear him to perform his 
duties. Now there is no particular law authorizing the 



AUTHORIZING PRESIDENT TO ADMINISTER OATH 81 

administration of that oath, and there is no law by reas- 
on of his having taken that oath to authorize him to admin- 
ister the oath to other parties, and therefore, so far as 
an oath administered by that one is concerned, there is 
no legal validity to it, while if an oath is administered 
by a person who is authorized to administer it, I look 
upon it as being binding and obligatory. If we are to 
take an oath that has no obligation or no binding force, 
then we might have just as well proceeded in this trans- 
action without taking any oath at all. But it seems that 
we saw proper in our wisdom to be sworn in so that 
we could give dignity and solemnity to our actions. I 
therefore oppose this motion, because there seems to be 
one way that is certain ; there seems to be a doubt as to 
the other, and being a doubt, I take that which is cer- 
tain. 

Mr. MAYHEW. I would like to ask the gentleman 
one question, if he is of the opinion that we have no au- 
thority to administer oaths. 

Mr. POE. I will answer the gentleman that we have, 
but there is no law to make it binding any further than 
the law that governs a proceeding of this kind. We are 
proceeding under no statute. 

Mr. BATTEN. I think the history of constitutional 
conventions will show that just about as many conven- 
tions have been held where the members did not take 
any oath at all as there is when the oath was taken. 
The act of the Chief Justice swearing in the members of 
this body was an act of courtesy. We are only a body of 
delegates from the people of the territory to take this 
step. Now there being no law requiring the members of 
this body to take the oath of office or the president to 
take this oath of office, we have ventured to assume that 
obligation. In adopting the rules for the government of 
this body, we adopted Cushing's Manual, and adopting 
that, we adopted the principles which prevail in any de- 
liberative body that the presiding officer of that body 



82 SUPPLIES FOR CONVENTION 

shall have the power to administer the oath to the mem- 
bers of that body.. 

The CHAIR. It is moved and seconded that mem- 
bers as they may come in from day to day and new at- 
taches as they may be elected from time to time, will be 
sworn in by the president. (Carried). 

The CHAIR. I understand from the remarks made 
by the gentleman from Alturas that there was one dele- 
gate, at least, who had just appeared at the convention. 

Mr. BEATTY. Mr. Vineyard. 

The CHAIR. If he is present, in order that he may 
participate at once in the proceedings of the convention, 
the chair will ask him and any other gentleman who has 
come in to stand and be sworn in. 

(The oath is administered). 

Mr. AINSLIE. Mr. President, I believe we elected 
an assistant secretary yesterday and in order to save 
time, I believe she ought to present herself for the oath. 

Mr. BEATTY. I move that Mr. Ainslie be author- 
ized to assist the assistant secretary to the stand. 

Mr. AINSLIE. I suggest that it would be more ap- 
propriate for some single gentleman to escort the lady. 

(The oath is administered). 

SUPPLIES FOR CONVENTION. 

Mr. POE. I ask that the rules be suspended that I 
may make a motion. The motion that I desire to make 
is this. I have been informed by the sergeant-at-arms 
that there are not sufficient chairs and tables to accom- 
modate the various committees of this convention, and I 
therefore move that the sergeant-at-arms be authorized 
to rent a sufficient number of chairs and tables necessary 
for the use and accommodation of the several committees 
of this convention. (Seconded). 

The CHAIR. Gentlemen, you have heard the mo- 
tion. (Vote). The ayes have it and it is so ordered. 

The CHAIR. I will state that we are proceeding 
here without very much order, and we will resume the 
regular order of business of the day. Presentation of 
petitions and memorials. 



PETITION FROM W. C. T. U. 83 

Mr. BEATTY. Mr. President, there was presented 
yesterday by Mrs. Skelton a memorial which was re- 
ferred, and the ladies are present this morning and have 
no reply. I would like to have the matter taken up now 
and referred so that there may be some action taken. 

The CHAIR. If there is no objection, the memorial, 
or petition, rather, will be taken from the table and re- 
ferred to the committee on 

Mr. REID. As I understand it, it was not a memor- 
ial, but a request to this convention so that the women 
may present a memorial. They do not ask to be heard 
before a committee, but before this convention. By re- 
ferring this letter to the committee, the question will 
come back here whether we hear them on presenting 
this memorial. I think, Mr. President, that this com- 
mittee of ladies should have a hearing here at such hour 
as this convention may designate. I think we ought not 
to send her letter to a committee without acting upon it. 
I think the ladies ought to have a fair showing — a fair 
chance to be heard. 

The CHAIR. The chair agrees most heartily with 
the gentleman from Nez Perce, but under the rules of 
this convention, it will have to be referred to one of the 
committees unless there is another motion made to take 
the matter up. 

Mr. REID. Mr. President, I move that the ladies be 
accorded a hearing tomorrow morning at 10:00 o'clock. 
(Seconded). 

Mr. BEATTY. I call for the reading of that commu- 
nication. I have forgotten what it is. 

The CHAIR. The secretary will read for the in- 
formation of the gentleman, the communication from 
Mrs. Skelton. (Secretary reads). 

The CHAIR. It is moved and seconded, gentlemen, 
that the petition which was presented on yesterday, re- 
questing a hearing before the convention on behalf of the 
W. C. T. U. be granted, and that tomorrow morning after 
the formal opening of the convention, reading of the 



84 REPORTS OF STANDING COMMITTEES 

minutes, and so on, this hearing be granted to the ladies 
representing that Association, on the floor of the conven- 
tion. (Vote). The ayes have it and it is so ordered. 

The CHAIR. Are there any further petitions or me- 
morials to be presented? 

Mr. PEFLEY. I move you, sir, that there be a com- 
mittee of three appointed to escort the ladies to this con- 
vention tomorrow morning at 10:00 o'clock. 

The CHAIR. Is there any second to the motion? 
(Seconded). 

The CHAIR. It is moved and seconded that a com- 
mittee of three be appointed to escort the ladies repre- 
senting this Association to this convention tomorrow 
morning at 10:00 o'clock. (Vote). The motion prevails. 

Mr. AINSLIE. If it is not out of order, I move that 
Judge Mayhew act as chairman of that committee. 

Mr. MAYHEW. I respectfully decline, not being 
equal to the task. 

The CHAIR. The chair will appoint as that com- 
mittee, Mr. Pefley of Ada, Mr. Mayhew of Shoshone, and 
Mr. Ainslie of Boise. 

Are there any reports of standing committees? 

REPORTS OF STANDING COMMITTEES. 

Mr. BALLENTINE. I offer the following resolu- 
tion: 

Resolved, That all standing committees of the conven- 
tion be instructed to report to the convention on or be- 
fore Friday, the 12th inst., at 2:00 o'clock P. M. (Sec- 
onded) . 

The CHAIR. Gentlemen, it has been moved and sec- 
onded that all standing committees of the convention be 
instructed to report to the convention by Friday follow- 
ing at 2 :00 o'clock P. M. Are there any remarks? 

Mr. MAYHEW. Mr. President, I don't know what 
that resolution means by standing committees to report 
to this convention by Friday, July 12th. Report what? 
Report that they are in session ? Report any part of the 
constitution, or what are they to report? Now it is 



REPORTS OF STANDING COMMITTEES 85 

very evident to me with a number of standing com- 
mittees it will be impossible for them to perform their 
entire duties, by getting up and finishing with that por- 
tion of the constitution and report it by next Friday — it 
cannot be done. If this resolution should pass, it would 
cause those committees to come in here with nothing to 
report and ask leave to sit again. I don't understand and 
can't pretend to, Mr. President, how you can force a 
committee to do something that in fact it will be impos- 
sible for them to do? Now this committee on Judiciary 
can't report that portion of the constitution which it is 
required for them to formulate and report. They can't 
do it by next Friday; it is impossible for them to do it. 
Further than that, Mr. President, there is quite a num- 
ber of the gentlemen on those committees who are ab- 
sent, whose knowledge, wisdom and experience this con- 
vention desires to have. Mr. Heyburn, chairman of the 
committee on Judiciary cannot be here until next Satur- 
day; Mr. Sweet, who is a member of that committee, a 
very important man on that committee, with experience 
and knowledge, cannot be here until next Saturday to 
take any part on that committee. I think this resolution 
will be premature. To require the committees to come 
in here, they would have to ask for further time to re- 
port. I think they should have a longer time than three 
days to perform their duties. And I think this: If 
there is a single man on those committees who can get 
up a report on those subjects in three days, he is a very 
wise man. I hope the resolution will not prevail, be- 
cause it is enforcing work upon the committee that it is 
impossible for them to perform. I hope the resolution 
requiring a report next Friday will not prevail. 

Mr. BALLENTINE. Mr. Chairman 

Mr. MAYHEW. I want to ask here, how is the 
committee on Revision and Enrollment going to report? 
How is the committee on Public and Private Corpora- 
tions to report? This is a sweeping resolution re- 
quiring all the committees to report or ask leave for 
further time. 



86 REPORTS OF STANDING COMMITTEES 

Mr. BALLENTINE. Mr. Chairman, the object I 
had in introducing this resolution was to anticipate the 
business of the convention. It is a well known fact that 
all committees that are appointed by this convention 
have precedents for their government and I cannot see 
the impossibility of formulating their report in three 
days. I think if it is necessary, they could formulate all 
of the reports in that time, for the great majority of 
this convention are anxious to attend to business and 
get home. I, for one, feel that it will be impossible for 
me to remain here longer than this week; still I am anx- 
ious to participate in all business of this convention 
with the desire to expedite the business as quick as pos- 
sible, and I can see no objection to the committees re- 
porting at that time. 

Mr. BATTEN. I think if the gentleman's motion 
were amended so as to read, and report what, if any, 
progress the committees have made, then it would advise 
us as to how the committees are proceeding with their 
work and remove the objection of the gentleman from 
Shoshone. 

The CHAIR. Will the gentleman from Alturas make 
that as a motion? 

Mr. BATTEN. I move as an amendment that the 
motion of the gentleman from Alturas be so amended 
as to read, that those committees be instructed to report 
what if any progress they have made upon the various 
matters committed to their care. 

Mr. POE. I move as a substitute for that, and I 
think it will meet the end aimed at, this: That the sev- 
eral committees be requested to report to this convention 
as soon as practicable. 

Mr. MORGAN. Second the motion. 

The CHAIR. Any further remarks? It has been 
moved and seconded, gentlemen of the convention, that 
all the standing committees of the convention be re- 
quired to report by Friday, the 12th day of July, at 2:00 
o'clock P. M., and to that there is an amendment pend- 
ing, offered by the gentleman from Alturas, that the 



LEAVES OF ABSENCE 87 

resolution be so amended as to require them to report 
progress, and to that amendment a substitute is offered 
by the gentleman from Nez Perce that the committees 
report to this convention as soon as practicable. (Vote). 
The ayes have it and it is so ordered. Any further busi- 
ness before the convention? 

Mr. MORGAN. In order that these committees may 
get to work and do the work imposed upon them, I 
move that the convention do now adjourn until tomorrow 
morning at 10:00 o'clock. 

LEAVES OF ABSENCE. 

Mr. WHITTON. Before the convention adjourns, I 
wish to ask for leave of absence a few days. I've got to 
go home to attend the meeting of the county commis- 
sioners. I will have to make it indefinite— I don't know 
how long the business will last. 

The CHAIR. If there is no objection, the leave will 
be granted. There is no objection. 

Mr. HASBROUCK. I would like to make the hour 
of adjournment until 11 :00 o'clock so as to give the com- 
mittees time to work a little before the convention 
meets. There is, as a rule, after the convention meets, 
a great deal of time taken up. 

Mr. MORGAN. I accept the amendment. 

Mr. BATTEN. My colleague, Mr. McMahon, re- 
ceived a communication informing him of the serious 
illness of his wife. In his behalf I ask that he be ex- 
cused from attendance this morning and be granted a 
leave of absence until next Tuesday morning. 

The CHAIR. If there is no objection, the leave will 
be granted. 

It is moved and seconded, gentlemen, that this con- 
vention do now adjourn until tomorrow at 11 :00 o'clock. 
(Vote). The convention is duly adjourned. 



88 ADDRESS OF MRS. SKELTON 

SIXTH DAY. 
Wednesday, July 10, 11 :00 A. M. 

ROLL CALL. Present: Messrs. Allen, Anderson, 
Andrews, Ballentine, Batten, Bevan, Blake, Brighain, 
Campbell, Chaney, Clark, Crook, Crutcher, Gliddon, 
Hammell, Hampton, Harkness, Harris, Hasbrouck, Hays, 
Hogan, Howe, Jewell, King, Kinport, Lemp, Lewis, 
Maxey, Mayhew, Melder, Myer, Moss, Pefley, Pierce, 
Pinkham, Poe, Pritchard, Pyeatt, Savidge, Sinnott, 
Steunenberg, Stull, Taylor, Underwood, Vineyard, Wil- 
son, Mr. President. 

Excused: Cavanah, Heyburn, McMahon, Sweet, 
Whitton, Woods. 

SECRETARY reads minutes of yesterday's proceed- 
ings. 

Mr. MORGAN. Mr. Standrod is here ; also Mr. Blake 
from Oneida County has not been sworn, and Mr. Hark- 
ness from Bingham. 

(These gentlemen are sworn in by the President.) 

The CHAIR. Presentation of petitions and memor- 
ials. Reports of standing committees. Reports of 
special committees. In connection with this call for 
reports of special committees, I will inquire whether the 
committee appointed yesterday to escort the ladies of 
the Woman's Christian Temperance Union are ready to 
report. A special order was made for 10:00 o'clock 
this morning for the purpose of giving the ladies repre- 
senting that Association a hearing before this convention. 

Mr. PEFLEY. So far as I am concerned, I don't 
know whether I am ready to escort the ladies or not, and 
I don't know whether the other parties are here or not. 
If it is in order, we will proceed now. 

The CHAIR. It is in order. 

(The ladies are escorted in.) 

ADDRESS OF MRS. SKELTON. 

The CHAIR. Gentlemen of the convention, in pur- 
suance of the order of the convention that a hearing be 



ADDRESS OF MRS. SKELTON 89 

granted to the representatives of the Woman's Christian 
Temperance Union, I take great pleasure in introducing 
Mrs. Henrietta Skelton, the representative of the W. C. 
T. U. 

Mrs. SKELTON. Mr. President, gentlemen and delegates of 
the constitutional convention of Idaho: — I have the honor today to 
represent Idaho and one small branch of the great body of the 
Woman's Christian Temperance Union. Our organization is only 
about a year old in this state — in this territory of Idaho. (You 
see, I want to make it a state right off.) But we have already 
planted our white banner on the mountains and in the valley and 
we intend to plant them everywhere, wherever there is a half 
dozen earnest women to be found to labor for God and home and 
native land. We come to you today, gentlemen, and we trust to 
your justice, to the chivalry of the men of the 19th century, and 
to your generous hearts as fathers representing this great terri- 
tory and laying the foundation for its 'future eminence. You 
need not be afraid, dear gentlemen, to take us, the weaker vessels, 
to help you in the great movement that is to come. We are 
willing to stand beside you shoulder to shoulder; we are willing 
to bear the burden and heat of the day in the great battle which 
is to come. We are willing to do anything and everything to help 
you to make Idaho be the "Gem of the Mountains." But to do this, 
dear gentlemen, we come to you with a new voice today of the 
motherhood, of the sisterhood, of the womanhood, asking you to 
place in that constitution something which shall be a weapon to 
the dear women of the land to protect our homes, for without it, 
they will will not be able to do so. We also ask you to help to 
build a wall around this state, — put out strong drink, and to make 
your constitution so that when you place it before Congress next 
winter, it will be the admiration of the land. 

A year ago I was an observer in the convention in Dakota and 
listened to that argument for several days in the convention. Again 
they are gathering in Dakota and you know the plank which they 
are putting in for female suffrage and prohibition will be a 
strong one. Washington, which joins you so closely, is asking for 
the same. Wyoming has tested woman's suffrage for twenty-five 
years, and if only Wyoming had as many women voting as men 
voters, Wyoming today would be free from everything that de- 
moralizes manhood; but unfortunately Wyoming has only one 
woman voter for forty men voters, and Wyoming is not able to 
do what it should do. But when you go to Wyoming and at the 
University in Laramie, the men will tell you that it was our 
women got it through; it was our women who pushed that through 
Congress; it was our women who asked largely and received 
scriptural portion. So, dear gentlemen, I present to you in the 



90 WOMAN'S SUFFRAGE AND PROHIBITION 

name of the Woman's Christian Temperance Union of Idaho, the 
following resolutions, trusting that they may be engrafted in the 
constitution which you are framing now: 

PETITION FOR WOMAN'S SUFFRAGE AND PROHIBITION. 

To the Delegates of the Territory of Idaho in Constitutional Con- 
vention, Greeting: 
Idaho's Woman's Christian Temperance Union request and 
earnestly pray you, first, that in the constitution to be proposed 
to the citizens of Idaho for their approval or rejection, no dis- 
crimination on account of sex shall be made; but citizens of both 
sexes, possessing the necessary qualifications, shall be equally 
eligible as electors. Second, that the following shall be made an 
article of said constitution, namely: 

ARTICLE 

Section 1. The manufacture, sale, or keeping for sale of 
intoxicating liquors for use as a beverage is hereby prohibited, 
and any violation of this provision shall be a misdemeanor pun- 
ishable as shall be provided by law. 

Sec. 2. The manufacture, sale, or keeping for sale of intoxi- 
cating liquor for other purposes than as a beverage may be 
allowed in such manner only as may be prescribed by law. 

Sec. 3. The general assembly shall at the first session under 
this constitution, enact laws with adequate penalties for its en- 
forcement. 

Very respectfully submitted, 

Mrs. H. Skelton, 

President. 

Nov/, gentlemen, we only ask what every one who loves his 
home and its fireside and the rising generation must today ask 
for. We only ask, dear gentlemen, that you give us a weapon 
whereby we may protect ourselves. There are thousands of women 
in the land contributing taxes today who have not one vote to 
say how those taxes shall be expended or who shall be the man to 
expend that tax. Now, we want you as generous, noble-hearted, 
fair-minded men of Idaho, we want you to provide that at least 
some women who are paying taxes shall have a voice. I ask you, 
dear gentlemen, and I appeal to you and to all Idaho. There was 
a mother once who held you at her knee. There was a mother 
once who placed into your life all that which is noble and good. 
If that mother is alive, she must be proud of her boy who helps 
to lay the foundation for a grand work today in Idaho. If she is 
dead, her angel spirit will certainly hover around you today and 
will be there when you frame that constitution. There is a dear 
wife at home. She is one of our sisters. She may not wear the 
white ribbon as we do, but I am sure that every woman in Idaho 



WOMAN'S SUFFRAGE AND PROHIBITION 91 

is with us heart and soul. There are many women who do not 
wear the white ribbon but they are heart and soul with us in 
the work. So, gentlemen, I want you to ponder well, — I don't 
want you to reject the resolutions. I leave to go over the moun- 
tains and am going into the basin the end of this week. I pass 
through the mountains and I go down into the valley and there 
comes the Macedonian cry to me from many places: "Why don't 
you come and organize us? We want to be in this great army 
who are laboring for the people of God's kingdom upon his foot- 
stool." So, gentlemen, we plead with you as brothers, for you are 
all our brothers in Christ Jesus our Lord. We believe you are 
honorable men, noble men who have it in your power today to 
honor yourselves by doing what we ask you to do, and if you db 
so, by and by, when some of us have folded our hands in silent 
death, when this day shall lie deep in the memory of those who 
are here today, those who are at our anniversary will point us 
out and say, "Oh, it was on this day that a woman's voice was 
heard in the deliberations of the convention and the dear men 
listened to the cry of the women, and gave them just what they 
asked." Here we are celebrating our annual convention here in 
Boise City. I trust that in that convention we will be able to 
embody in our next minutes such sentiments of thanks for the 
adoption of the resolutions, because you helped us; you did what 
we wanted you to do; you helped to build up God's kingdom and 
lay the foundation for a grand and glorious work for Idaho. 

Thank you kindly, gentlemen, for your attention and for your 
generosity and for your chivalry in admitting us into this honor- 
able body. We thank you from all the kindness of woman's heart, 
and so may your days be blessed and may every hour as you are 
sitting here in this convention be hallowed by the sentiment we 
are honoring ourselves by placing upon the statute book, and by 
placing in this constitution something which in after life we 
surely shall be proud of, then when this state comes, Idaho will 
be free from the liquor traffic. When on election day the dear 
women shall go to the polls as well as our husbands and say who 
shall or who shall not rule Idaho, when that day comes, we shall be 
gathered into a kind of jubilee and we will make the hills and 
mountains ring with joyful song, because it will then be that we 
realize the fact that our labor in the Lord has not been in vain. 

Thanking you kindly again, gentlemen, for your courtesy. 
(Applause.) 

I have the great pleasure in behalf of the W. C. T. U. of 
Idaho to present to the convention this bouquet with the senti- 
ment attached to it. (Handing bouquet to the president.) (Ap- 
plause.) 

The CHAIR. The chair in behalf of the convention 
accepts of this offering by the ladies of the W. C. T. U. 



92 WOMAN'S SUFFRAGE AND PROHIBITION 

for the cause which they represent. (Applause.) 

Any other lady who desires to address the conven- 
tion in this behalf? 

A LADY. I want to ask and invite the convention 
to an ice cream social prepared by our Young Womens' 
Christian Temperance Union, in the reading rooms. Our 
W. C. T. U. have six reading rooms. 

The CHAIR. The chair takes occasion to inform the 
ladies who have presented this petition and memorial 
that the same will receive proper attention, and justice 
will no doubt be done to the ice cream. 

The petition is by the chair referred to the committee 
on Election and Right of Suffrage. 

Gentlemen of the convention, what is your further 
pleasure? 

Mr. PEFLEY. Mr. President, if in order, I would 
make a report in regard to the order of the day. I 
would say on behalf of the committee that they have per- 
formed the duty that was required of us to perform in 
conducting the ladies to the convention. 

The CHAIR. If there is no objection, the committee 
will be discharged from further duty. 

The chair will announce that we have finished the 
order of business for today, unless there is some special 
matter which some member of the convention desires to 
bring up. 

Mr. MAYHEW. Mr. President, there is nothing fur- 
ther, I believe, before this convention at present. The 
committees now are at work preparing their reports and 
therefore I move you that this convention now adjourn 
until Friday morning at 10:00 o'clock. (Seconded.) 

The CHAIR. The motion prevails. 



SEVENTH DAY. 

Boise, Idaho, Friday, July 12, 1889. 
The CHAIR. Gentlemen of the convention, you will 
please come to order. 

Prayer by Chaplain Smith. 



LEAVES OF ABSENCE 93 

ROLL CALL. Present: Messrs. Ainslie, Allen, An- 
derson, Andrews, Ballentine, Batten, Beatty, Bevan, 
Brig-ham, Chaney, Clark, Coston, Cruteher, Glidden, 
Gray, Hammell, Hampton, Harkness, Harris, Hays, Ho- 
gan, Howe, King, Kinport, Lewis, Maxey, Melder, Myer, 
Morgan, Moss, Pefley, Pierce, Pinkham, Poe, Pritchard, 
Pyeatt, Reid, Robbins, Salisbury, Sinnott, Shoup, Stull, 
Taylor, Underwood, Vineyard, Whitton, Wilson, Mr. 
President. 

Excused: Messrs. McMahon, Cavanah, Heyburn, 
Savidge, Sweet and Woods. 

Absent: Messrs. Beane, Blake, Campbell, Crook, Ha- 
gan, Hasbrouck, Hendryx, Jewell, Lamoreaux, Lemp, 
Mayhew, McConnell, Standrod, Steunenberg. 

LEAVES OF ABSENCE. 

Mr. STULL. I ask leave of absence for three days 
on business that calls my attention. 

The CHAIR. Leave of absence is asked by Mr. Stull, 
delegate from Elmore county, for a period of three days. 
Is there any objection to this leave of absence being 
granted? Our rules provide, gentlemen, that leave of 
absence may be granted by the vote of the convention or 
by unanimous consent. The chair hears no objection and 
leave is granted. 

Mr. Ballentine and Mr. Vineyard were granted leave 
of absence until Tuesday, July 16th. 

Mr. Glidden was granted an indefinite leave of ab- 
sence. 

Mr. Harkness was granted leave of absence until 
Tuesday, 16th inst. 

Mr. Sinnott was granted leave of absence until the 
13th. 

SECRETARY reads minutes of last day's pro- 
ceedings. 

The CHAIR. If there is no objection, the minutes 
of the last day's proceedings of the convention will be 
considered approved. There is no objection and it is so 
ordered. 



94 MILEAGE OF MEMBERS 

The CHAIR. Presentation of petitions and memor- 
ials. Reports of standing committees. Reports of sel- 
ected committees. Final readings. (None presented.) 

Gentlemen of the convention, the regular order of 
business seems to be exhausted. 

Mr. BE ATT Y. Mr. President, I move we adjourn 
until tomorrow morning at 10:00 o'clock. 

MILEAGE OF MEMBERS. 

Mr. HASBROUCK. Before the question is put, on 
behalf of the committee on Ways and Means, I desire 
that the members of this convention be requested to call 
at the committee room of Ways and Means and give in 
their mileage so that the committee can report intelli- 
gently upon the matter. The committee rooms are in the 
office of the clerk of the supreme court. 

Mr. BALLENTINE. Before the motion is put to 
adjourn, I will in all probability be absent at the meet- 
ing of an important committee, and I desire my col- 
league, Major Pinkham, to represent me in that com- 
mittee, and now ask that he be substituted for myself on 
the apportionment committee. 

The CHAIR. Is there any objection to the substitu- 
tion of Major Pinkham for Mr. Ballentine on the com- 
mittee on apportionment? There is no objection and it 
is so directed. 

Mr. REID. I ask permission to announce that imme- 
diately on the adjournment of the convention, the demo- 
cratic caucus will meet in the rooms of the Supreme 
Court. 

The CHAIR. It is moved and seconded, gentlemen, 
that this convention do now adjourn until tomorrow 
morning at 10:00 o'clock. (Vote.) The ayes have it and 
the convention is adjourned until tomorrow morning at 
10:00 o'clock. 



EIGHTH DAY 95 

EIGHTH DAY. 
Saturday, July 13, 10:00 A. M. 

(Vice-President in the chair.) Convention will come 
to order. 

Prayer by chaplain. 

Mr. McCONNELL. I move that we dispense with 
the regular order of business this morning and adjourn 
until 3:00 o'clock this afternoon. 

Mr. AINSLIE. Mr. Chairman, before that motion is 
put, I would like to ask for an indefinite leave of absence 
for Mr. Beane. He requested me to make this request. 
He may be here in a few days. 

Mr. BEATTY. I have a suggestion before that mo- 
tion is put. 

The CHAIR. One matter is before the convention 
and then I will hear the gentleman from Alturas. The 
leave is granted. 

Mr. BEATTY. I desire to make a report of the 
committee on elections and suffrage concerning the 
memorial that was referred to this committee. 

The CHAIR. If the gentleman will wait a moment, 
I will see if the convention will dispense with the order 
of the business of the convention. The motion of the 
gentleman from Latah was that we dispense with the 
order of business. 

Mr. McCONNELL. I would like to explain why I 
made the motion. There are a number of committees 
who are nearly ready to report and by adjourning until 
this afternoon, they will have an opportunity to bring 
their reports all in. That is why I made the motion. 

Mr. MORGAN. I think there are some reports of 
standing committees that are ready to be brought in this 
morning, and it seems to me that we ought not to ad- 
journ until we see. 

The CHAIR. Gentlemen, the motion is to adjourn. 
(Vote.) The noes have it. The motion is lost. 

The secretary will read the proceedings of the last 
meeting. 

SECRETARY reads the minutes. 



96 LEAVES OF ABSENCE 

ROLL CALL. Present: Messrs. Ainslie, Allen, An- 
derson, Andrews, Batten, Beatty, Bevan, Blake, Brig- 
ham, Campbell, Chaney, Clark, Crook, Crutcher, Gliddon, 
Gray, Hammell, Hampton, Harris, Hasbrouck, Hays, 
Hogan, Howe, Jewell, King, Kinport, Lewis, Maxey, 
Mayhew, McConnell, Melder, Myer, Morgan, Moss, Pef- 
ley, Pierce, Pinkham, Poe, Pritchard, Reid, Robbins, 
Salisbury, Shoup, Stull, Taylor, Underwood, Vineyard, 
Wilson. 

Excused: Beane, Cavanah, Heyburn, McMahon, Sin- 
nott, Sweet, Whitton. 

Absent: Ballentine, Coston, Hagan, Harkness, Hen- 
dryx, Lamoreaux, Lemp, Pyeatt, Savidge, Standrod, 
Steunenberg, Woods, Mr. President. 

LEAVES OF ABSENCE. 

Mr. GRAY. Mr. President, I would ask leave of 
absence for this forenoon. I am called before the court 
and the judge at chambers. It is necessary. 

The CHAIR. The gentleman from Ada asks leave of 
absence this forenoon. Without objection, it will be 
granted. 

Mr. PRITCHARD. I would request leave of absence 
for one week. 

Mr. POE. Mr. President, I think it is perfectly 
proper when a member of this convention is so situated 
that it becomes absolutely necessary on account of sick- 
ness or some accident, for him to leave this convention, 
that such request should be granted. But we have come 
here, all of us, at a great sacrifice for the purpose of 
adopting a constitution for our future state. This in- 
discriminate business of granting leave of absence with- 
out any vote, seems to me has already been carried to 
an unreasonable extent. Men come here — they have 
assumed the responsibility, they have laid aside their 
business and come here for a particular purpose and, of 
course, this is an expensive matter, and I don't think 
that it is right that men should leave here for the pur- 
pose of attending to their business, for the reason, Mr. 



LEAVES OF ABSENCE 97 

President, that it retards the work of this convention. 
I know as a matter of fact now that the business of this 
convention has been retarded probably a week, — almost 
a week, at any rate, by reason of absence of certain mem- 
bers of this convention. They are on committees and 
those committees will not take the responsibility to go 
on and get up their report and present it to this conven- 
tion until they have consulted with their colleagues upon 
the committees, and therefore, it retards the proceedings 
of this convention, and I think there ought to be a stop 
to this matter. Now here is a gentleman that asks leave 
of absence for a week. Now I presume this convention 
ought not to sit for more than a week. Of course, if the 
gentleman has some business that absolutely requires his 
attention, and is such as would justify this convention 
to act as a whole, they ought to do this, but this going 
home to see his family once a week and no business 
reason, I don't think the gentlemen should ask it, and 
therefore, in the future, I will oppose the absence of any 
member unless he has got some legitimate and good 
reason for going away and neglecting a business he has 
come to attend. I think it is as highly important as any 
business he may have. 

The CHAIR. I do not understand the gentleman as 
opposed to any leave of absence. The rule on the sub- 
ject is that unless there is objection, the chair will grant 
leave by unanimous consent. Of course, if any member 
objects, it will be necessary to take a vote on the ques- 
tion. 

Mr. POE. Mr. President, before that motion is put, 
and before a vote on it — 

The CHAIR. I will state to the gentleman, there is 
no motion before the house. 

Mr. POE. I know that, but I would like to hear the 
gentleman's reasons for asking leave, before we vote. 

The CHAIR. The chair will say that the gentleman 
has been excused. I put the motion. No one objecting, 
it was not necessary to vote. 

Mr. POE, I rose, Mr. President, in order to make 



98 LEAVES OF ABSENCE 

that objection. I have stated my objections in language 
and words. Now I do object unless the gentleman can 
give some reason! 

The CHAIR. The chair did not observe that the gen- 
tleman objected, but if he made it, I will put the question. 

Mr. POE. I asked before that question was put, to 
have the gentleman give any reason he may have. 

The CHAIR. The chair will give him an opportunity 
so that he can give his reasons, but I want to state be- 
fore the convention the question is whether the gentle- 
man from Owyhee should be excused for one week. 

Mr. PRITCHARD. Our Board of Equalization meets 
the second Monday of next month, and I find that this 
convention is going to last a little longer than I thought 
it would. I thought I could finish my business so as to 
be ready the day after the convention adjourns, but I 
find I am not going to get to do so. Now, in the mean- 
time, I have very little to do. They have excused a great 
number who are on several committees; some on four 
or five committees. I have been on one committee and 
been here a week — only one three or four hours' session 
of this committee. I have had nothing to do and there 
are a number that have been excused who have a great 
deal to do. 

Mr. WILSON. I move that the gentleman be ex- 
cused for one week. 

Mr. POE. Mr. President, before that motion is put; 
it is only in the case of objection that it is necessary to 
put it to a vote. Now I have given my reasons for ob- 
jecting to this convention, for raising that point at this 
particular time. It seems that this gentleman is a board 
official and it is necessary for him to attend to these 
official duties, and under those circumstances, I withdraw 
my objection. 

The CHAIR. We will consider the gentleman from 
Owyhee is excused for one week. 

The CHAIR. Presentation of petitions and memor- 
ials. None. 

Reports of standing committees. 



COMMITTEE REPORT ON W. C. T. U. PETITION 99 

The chair recognizes the gentleman from Alturas to 
make his report. 

Mr. BEATTY. Our report was sent up to the desk. 
SECRETARY reads as follows: 

COMMITTEE REPORT ON W. C. T. U. PETITION. 

Mr. President, Your committee on Elections and Suf- 
frage to whom was referred the memorial (herewith re- 
turned) of the Idaho Women's Christian Temperance 
Union, have respectfully considered the same and their 
conclusion upon the subject of female suffrage, therein 
referred to, will appear by the final report of your com- 
mittee. 

The memorial also directs attention to the subject of 
temperance, but the consideration of that question not 
being included within the authority granted your com- 
mittee, is respectfully referred back to your honorable 
body. J. H. Beatty, 

Chairman. 

The CHAIR. Gentlemen, the committee refers the 
question of prohibition back to this convention as not 
being in their province. What will you do with that part 
of the report? 

Mr. AINSLIE. I move that the report be received 
and adopted and the committee be discharged from the 
further consideration of that question. 

The CHAIR. The question is now before the con- 
vention. 

Mr. BEATTY. It is simply the question referred to 
in the memorial, I presume? 

The CHAIR. Yes; that your committee be dis- 
charged from the further consideration of the question 
of prohibition. As I understand it, your committee re- 
tained the question of suffrage to be reported hereafter. 

(The motion was carried.) 

The CHAIR. The question is still before the con- 
vention and referred back to this convention. This com- 
mittee is discharged from the consideration of the ques- 
tion of prohibition by the last motion. What will you do 
with the question now? It is now before the convention. 



100 COMMITTEE REPORT ON CORPORATIONS 

Mr. SHOUP. I move that it be referred to the com- 
mittee of the whole convention. 

The CHAIR. The gentleman from Custer moves that 
the memorial of the Woman's Christian Temperance 
Union in reference to prohibition be referred to a com- 
mittee of the whole house. (Vote.) The ayes have it 
and the motion is adopted. 

Any further reports from standing committees? 

COMMITTEE REPORT — PREAMBLE AND BILL OF RIGHTS. 

Mr. SHOUP. Mr. President, the committee on Pre- 
amble and Bill of Rights have unanimously agreed upon 
the report herewith sent to the secretary's desk. 

Respectfully submitted, 
James M. Shoup, 

Chairman. 
(Secretary reads report.) 

The CHAIR. The report will go over, under the rule, 
and be printed. 

COMMITTEE REPORT — MILITIA. 

Mr. HAMMELL. Mr. President, your committee on 
Militia and Militarjr Affairs hereby present their report 
and unanimously recommend its adoption as a part of the 
constitution of the state of Idaho. 

(Secretary reads report.) 

The CHAIR. The report, under the rule, will go over 
and be printed. 

COMMITTEE REPORT — LEGISLATIVE DEPARTMENT. 

Mr. MORGAN. Your committee on the Legislative 
Department of the constitution have instructed me to 
report the accompanying article, for the said Depart- 
ment, consisting of thirty-one sections. 

(Secretary reads report.) 

The CHAIR. The report will go over under the rule 
and be printed. 

COMMITTEE REPORT — PUBLIC AND PRIVATE CORPORATIONS. 

Mr. MAYHEW. The committee on Public and Pri- 
vate Corporations desire to report and respectfully sub- 



PRINTING REPORTS OF COMMITTEES 101 

mit the following report for your consideration. 

A. E. Mayhew, 

Chairman. 

(Secretary reads report.) 

The CHAIR. The report will go over under the rule 
and be printed. 

Reports of selected committees. None. 

Final readings. None. 

Gentlemen, that ends the order of business for today. 
What is the further pleasure of this convention? 

PRINTING REPORTS OF COMMITTEES. 

Mr. ALLEN. Gentlemen, if I am not out of order, 
in behalf of the printing committee, I would like to call 
the attention of the convention to the fact that it will 
require for these reports at least one week's time in 
which to present them to the convention. I would also 
like to ask instructions as to the number of copies re- 
quired of each report. Without instructions, the com- 
mittee had decided to order 100 copies. 

Mr. MORGAN. I move that 200 copies of each of 
these reports be printed for the use of the convention. 
Do I understand the gentleman to say that these reports 
cannot be printed in less time than a week? 

Mr. ALLEN. I meant to say that it will require a 
week's time to finish printing the entire number of re- 
ports as they will be presented. 

Mr. BEATTY. Does the gentleman refer to a report 
of a committee or all the reports of the committees. 

Mr. ALLEN. It will require at least this time, but 
they will be advanced as rapidly as possible. If there is 
any suggestion in regard to the precedence reports shall 
take, we will direct and act in accordance therewith. 

Mr. MORGAN. I understand the reports are to be 
printed in the order in which they are introduced. 

The CHAIR. Without instructions from the conven- 
tion, that will be the order. 

Mr. MORGAN. I don't still understand the gentle- 
man quite in regard to the time that will be consumed in 



102 PRINTING REPORTS OF COMMITTEES 

printing these reports. It is the desire of course, of 
every one and of all the convention, on account of im- 
portant business we have at home, to consider these 
matters at as early a day as possible. 

The CHAIR. The chair understood the gentleman 
to state that to print all the reports that are made today 
and also all those yet to be made will take a week, but 
not that it will take a week to print those reported today. 

Mr. MAYHEW. Mr. President, do I understand that 
it will take a whole week to have any one of those pre- 
sented back to the convention? If that is the case, I shall 
make a motion that none of them be printed. 

The CHAIR. The chair understands the gentleman 
from Shoshone, (Mr. Allen,) that it will take a week to 
print those reported today and those yet to be reported, 
but not a week to print those reported today by the com- 
mittees. 

Mr. MAYHEW. Gentlemen, the usual method of 
printing bills of a convention or legislative bodies is to 
put it in the hands of the committee on Printing. I am 
rather inclined to think it is the duty of the chairman 
of the committee on Printing to have that done as quickly 
as possible. I don't think there is any occasion for delay 
over 24 to 48 hours to have them printed. If it is going 
to take such a length of time, we shall not get through 
the convention for a month to come. 

Mr. MORGAN. Can't the chairman give us any in- 
formation as to how long it will take to print these three 
or four reports already handed in? 

Mr. MAYHEW. I would like to inquire again, Mr. 
President, what has become of our rules that we ordered 
printed. 

The CHAIR. The chair is unable to inform the gen- 
tleman. Can't the secretary or the chairman on Printing 
do so? 

Mr. MAYHEW. There is just this thing about it, 
Mr. President, if we can't get the rules in time for the 
use of this convention, we do not want them at all. They 
are no good after the convention adjourns. 



PRINTING REPORTS OF COMMITTEES 103 

; .: i 

The CHAIR. The chair has been informed that the 
rules are partly finished. The printer will have them 
ready for distribution Monday morning. 

The CHAIR. The question before the house is the 
motion of the gentleman from Bingham (Mr. MORGAN) 
to have 200 copies of each of the reports submitted 
printed. 

Mr. BEATTY. I would like to ask the chairman of 
the committee on printing whether the ordering of 200 
copies will make any material difference in the time re- 
quired for the printing of these rules. If it will, I will 
make a motion that it be 100. 

Mr. ALLEN. I merely made the statement, that be- 
ing my judgment, simply to get instructions and informa- 
tion from the convention upon which the committee 
might act. We will do the very best we can, and the 
committee will advance this in every way possible and 
probably will be able to present some of these reports on 
the Monday morning session. But we are rather limited in 
our facilities for such work and I merely called your at- 
tention to this fact at this time in order that, if it is 
necessary to direct the precedence of any of these re- 
ports, we may be advised of it. The committee can re- 
port progress. It will do the very best it can. 

Mr. MAYHEW. Mr. President, there has never been 
directly any motion about 200 copies to be printed. I 
have no doubt in my mind that the committee will do 
the very best it can. And perhaps the very best the 
committee can do is to have these things printed two or 
three weeks from now. But we can't stand that. Several 
members of this convention say if we cannot get these 
reports made and returned back, with both the rules 
and the other reports, in 48 hours after they are reported 
here, we had better go without these being printed. I 
ask the convention to consider this, if we are to sit here 
a number of days and do nothing after these matters are 
reported. You will observe, Mr. President, that all re- 
ports that have been reported by the committees are to 
be ordered printed and laid upon the table to be con- 



104 RESOLUTION OF INVITATION 

sidered in their order by the committee of the whole. 

The CHAIR. The chair will ask that the rules be 
read for the information of the convention. 

SECRETARY reads RULE 51, as follows: 

"All reports of committees, containing matter to be 
incorporated in the constitution, shall be considered in 
the order in which the reports are made, and upon their 
introduction and full reading before the convention, such 
matter to be incorporated shall lay upon the table, and 
be printed and when printed shall be placed on the 
calendar to be considered in the committee of the whole." 

Mr. MAYHEW. I have not heard an answer, Mr. 
President, from the chairman of the committee on 
printing to the question of the gentleman from Alturas, 
(Mr. Beatty) if it will make any difference in time to 
have 200 copies printed. If it is going to take any 
greater time to have 200 copies printed, I shall oppose 
the motion. 

Mr. ALLEN. I don't think it will take much longer 
after the matter is set up and on the press, to run out 
100 copies additional. It ought not to take more than an 
hour or two in the case of each report. 

The CHAIR. The question before the convention is 
on the motion of the gentleman from Bingham (Mr. 
Morgan) that there be printed 200 copies of each report 
of the articles to be incorporated in the constitution, for 
the use of the members of the convention. (Vote.) 

The motion is adopted. 

RESOLUTION OF INVITATION. 

Mr. ALLEN. I understand that the Nebraska Edi- 
torial Association is within the borders of Idaho today, 
and the suggestion has been made that it will be desirable 
to extend the invitation of this convention in connection 
spend a day in the capital city while they are in the 
Northwest. I would, therefore move, Mr. President, if 
it is in order, that Governor Shoup in behalf of this con- 
vention be authorized to extend a cordial invitation to 
the members of that association to visit this city and this 
convention. (Seconded.) 



NINTH DAY 105 

The CHAIR. It has been moved by the gentleman 
from Logan that Governor Shoup in behalf of this con- 
vention be authorized to extend a cordial invitation to 
the members of that association to visit this city and 
this convention on their way through this territory. 
(Vote.) The resolution is carried. 

The CHAIR. What is the further pleasure of the 
convention ? 

Mr. MAYHEW. I move the convention now adjourn 
until Monday morning at 10:00 o'clock. (Seconded and 
put to vote.) 

The CHAIR. The motion is adopted and the conven- 
tion is adjourned until Monday morning at 10:00 o'clock. 



NINTH DAY. 

Boise, Monday, July 15, 1889. 

The CHAIR. Gentlemen of the convention, you will 
please come to order. 

Prayer by Chaplain Smith. 

ROLL CALL. Present: Messrs. Ainslie, Allen, An- 
derson, Andrews, Batten, Beane, Beatty, Bevan, Blake, 
Brigham, Campbell, Cavanah, Chaney, Clark, Crutcher, 
Gray, Hagan, Hammell, Hampton, Harris, Hasbrouck, 
Hays, Hogan, Howe, King, Kinport, Lamoreaux, Lemp, 
Lewis, Maxey, Mayhew, Melder, Myer, Morgan, Pefley, 
Pierce, Poe, Reid, Robbins, Salisbury, Sinnott, Shoup, 
Standrod, Sweet, Taylor, Underwood, Wilson, Mr. Presi- 
dent. 

Excused: Messrs. Ballentine, Harkness, Heyburn, 
McMahon, Pritchard, Stull, Vineyard and Whitton. 

Absent: Armstrong, Coston, Crook, Glidden, Hend- 
ryx, Jewell, McConnell, Moss, Pinkham, Savidge, Steun- 
enberg, Woods. 

The CHAIR. A quorum of the convention being 
present, the secretary will read the journal of the last 
session. (Approved). 

Mr. MAYHEW. Several members have arrived who 
have not been sworn in. 



106 COMMITTEE REPORT— EXECUTIVE DEPT. 

The CHAIR. The chair would inquire whether the 
gentlemen are here present. If there are any delegates 
present who have not been sworn in as members of the 
convention, gentlemen, you will be kind enough to rise 
and be sworn. (Beane, Hagan and Taylor sworn by the 
president) . 

The CHAIR. Presentation of petitions and memor- 
ials. If there are none, the reports of standing com- 
mittees are next in order. 

Mr. AINSLIE. We will submit to the convention the 
report of the committee on the Executive Department. 

Mr. HASBROUCK. Your committee on Ways and 
Means are ready to report. 

The CHAIR. The secretary will read these reports 
in the order in which they came in. 

COMMITTEE REPORT — EXECUTIVE DEPARTMENT. 

SECRETARY reads report of the committee on Ex- 
ecutive Department. 

Mr. CLARK. Before this goes to the committee on 
Printing, I move that the secretary be authorized to 
number the sections consecutively. 

Mr. AINSLIE. The committee in considering that 
matter probably thought it would be proper for the com- 
mittee on Revision to number the sections. We thought 
that the committee on Salaries would have to fill them 
in also and it would come before the committee of the 
Whole after the amendment and then be inserted. The 
numbering would have to be done by the committee on 
Revision anyway. 

The CHAIR. I understand the motion as made is 
practically temporary, for the convenience of the con- 
vention when each particular article is being considered 
in the committee of the Whole so that reference can be 
made to it. The final numbering of sections would, of 
course, have to be made by the committee on Enrollment 
and Revision. (Seconded). 

The CHAIR. It is moved and seconded, gentlemen, 
that the secretary be instructed to fill up numerically the 
blanks of the report of the committee on Executive De- 



COMMITTEE REPORT— WAYS AND MEANS 107 

partment by numbering the sections. (Vote and car- 
ried). It is so ordered. The report of the committee 
on Executive Department which is incorporated or pro- 
posed to be incorporated in the constitution, will lie 
upon the table, under the rule, to be printed. 

SECRETARY reads report of the committee on 
Ways and Means. 

COMMITTEE REPORT — WAYS AND MEANS. 

The CHAIR. Gentlemen, what will you do with the 
report of the committee on Ways and Means? 

Mr. HASBROUCK. I do not suppose that it will be 
necessary to print this report. It is a mere matter of 
expenditure of this convention. I have been to confer 
with the territorial secretary and perhaps it would be 
as well to refer it to him as he will have to make up the 
payroll and to have a list of the mileage of members. 

The CHAIR. Does the gentleman from Washington 
make that in the shape of a motion? 

Mr. HASBROUCK. I will move that the report be 
received and adopted and referred to the secretary of 
the territory for the purpose I have named. 

Mr. ALLEN. I second the motion and call your at- 
tention to the fact that there is some mention of num- 
bers and some corrections that might be made by the 
secretary, probably. 

The CHAIR. It is moved and seconded, gentlemen, 
that the report of the committee on Ways and Means be 
referred to the secretary of the territory with the request 
that he shall issue certificates to the various members 
based upon this report, and that any corrections neces- 
sary to be made may be made by the secretary. Is that 
the understanding? 

Mr. HASBROUCK. Yes, Sir. 

Motion carried. 

The CHAIR. Are there any further reports from 
standing committees? If not, reports from special com- 
mittees? Final readings? Gentlemen of the convention, 
this constitutes the regular order of business for the day. 
What is your further pleasure? 



108 LEAVES OF ABSENCE 

Mr. WILSON. I would ask that Mr. A. B. Moss 
from Ada, be excused for three days. He went home 
Saturday and writes me that one of his children is sick 
and he cannot return. 

The CHAIR. Is there any objection to excusing 
Mr. Moss for the period of three days? If there is no 
objection, it will be considered as ordered by the conven- 
tion. 

Mr. HARRIS. I would ask that Mr. E. S. Jewell of 
Washington be excused until tomorrow morning, for the 
reason that he has to prove up on land before the 
clerk of the court at Weiser and this necessitates his ab- 
sence. 

The CHAIR. How long will he be absent? 

Mr. HARRIS. He will be in his seat tomorrow 
morning. 

The CHAIR. If there is no objection, Mr. Jewell 
will be excused until tomorrow morning. There is no 
objection. 

The CHAIR. The chair has received a note from 
Mr. W. C. Maxey, one of the delegates from Ada county, 
stating that he is called away by one of his patients for 
the day, and asking to be excused for the day. If there 
is no objection, he will be excused as requested. 

Another matter has been called to the attention of 
the chair by Mr. Gliddon, one of the delegates from 
Shoshone, who requests that a proposition be submitted 
to the convention allowing him, inasmuch as his return 
is somewhat problematical, on account of his business, 
to withdraw from the committee on Revenue and Fin- 
ance, and requests that Mr. 0. J. Salisbury of Custer 
county be placed upon that committee by the consent of 
the convention. Is there any objection to this change 
being made? If there is no objection, it will be so 
ordered by the chair. 

Gentlemen, what is your further pleasure? 

Mr. MORGAN. I move that we proceed to the con- 
sideration of the reports that have been handed in to 



LEAVES OF ABSENCE 109 

the convention in their regular order, and the first one 
coming up' would be the report of the committee on 
Salaries. 

Mr. MAYHEW. I hope that the gentleman will with- 
draw that motion for the committee of the Whole to 
consider that report as made. I am requested just now 
by several members of this convention, to move that we 
adjourn until tomorrow at 2 o'clock. The object of 
doing so, Mr. President, I will state before I make the 
motion; most of the committees are now busy about 
preparing their reports to be submitted to this conven- 
tion. They say if this time is given them, from 
now until tomorrow at 2 o'clock, most of the committees, 
if not all, will be prepared to report, and thereafter we 
can take up these matters and consider them by the 
committee of the Whole. I will state this, the members 
of the committee desire to be present when these re- 
ports are considered in the committee of the Whole. 
They also desire to be present at the meeting of their 
committees. They cannot be at both places at the same 
time. I think we would be prudent and gaining time if 
the convention will adjourn until tomorrow at 2 o'clock 
so that these reports can be made, so that we can take 
them up in their order and not be further delayed in 
considering them in the committee of the Whole. I 
move that this convention adjourn until tomorrow at 
2 o'clock. 

Mr. MORGAN. I withdraw my motion. 

Mr. BEATTY. I move an amendment to that, that 
we take a recess until this evening at 5 o'clock. I will 
state my reasons briefly, thus: The committee on Print- 
ing will not have work enough to keep the printer busy, 
and by 5 o'clock a number of reports can be referred to 
the Printing committee. By this means we will save 
time. We understand the printer is pushed, and if we 
delay until tomorrow at 2 o'clock to get more work be- 
fore him, he may be delayed several days to get the 
reports waiting for the return of the Printing com- 
mittee, and we want all of these matters before us to 



110 PRINTING OF COMMITTEE REPORTS 

consider them in our rooms and not merely to consider 
them here in the chamber. Now if there are no more 
reports made until tomorrow at 2 o'clock, we will not 
get these reports printed until the next day or day after 
that, which will be near the end of the week. By ad- 
journing until this evening at 5 o'clock, several com- 
mittees may be ready to place their reports in the hands 
of the committee. I make the amendment with the hope 
of saving time. (Seconded). (Mr. Mayhew accepted 
the amendment). 

The CHAIR. Gentlemen, it is moved and seconded 
that this convention do now take a recess until 5 o'clock 
this afternoon. Motion is carried. 

AFTER RECESS. 

5:00 P. M. 

The CHAIR. Gentlemen of the convention, you will 
please come to order. The convention this morning 
took a recess to this hour for the purpose of enabling 
any reports of standing committees to be presented in 
order that they might go into the hands of the printer 
as soon as possible, so that they might be discussed in 
the committee of the Whole. If there is no objection, 
we will begin calling for the reports of standing com- 
mittees. 

If there are no further reports from standing com- 
mittees of the convention, what is your further pleasure? 

PRINTING OF COMMITTEE REPORTS. 

Mr. CLARK. Mr. President, there was a disposition 
this morning to adjourn from day to day until the re- 
ports are all presented and printed. I simply would 
like to call the attention of the convention to this fact, 
as a member of the committee on Printing. I have con- 
ferred with the printers to find out about how fast 
they could get along. If the convention should carry 
out this sentiment of the morning to adjourn until all 
are in and all printed, it is my opinion that they will 
not be able to commence the consideration of the reports 



PRINTING OF COMMITTEE REPORTS 111 

before Friday. The printers are working as rapidly as 
they can; worked all day yesterday and all night. It 
is barely possible they might get through by Thursday. 
I simply give this as a warning, so that the members 
may reconsider that determination and get down to the 
general file tomorrow. 

Mr. BEATTY. I would like to ask the gentleman 
much work they have before them now and how 
long it will take them to finish the printing of the re- 
ports they have made. 

The CHAIR. There are four reports now ready 
upon the calendar and which are ordered to be printed. 
The report of the committee on Ways and Means was 
turned over to the secretary of the territory. Report 
of the committee on Legislative Department, on Public 
Salaries and Militia have been made and have been 
printed and are now upon the calendar. 

Mr. ALLEN. Mr. Chairman, I will say to the gen- 
tleman that the report of the committee on Corporations 
is in the hands of the printer and will be ready for re- 
port tomorrow morning, I understand. 

Mr. MAYHEW. Mr. President 

The CHAIR. One moment. I am informed by the 
secretary that in addition to those which are already 
printed, there are two others now in the hands of the 
Committee. 

Mr. MAYHEW. Mr. President, I would like to in- 
quire. Our rules, as I understand it, demand that when 
a matter is reported back from the printer printed, it 
lies upon the files or secretary's desk to be considered 
in the committee of the Whole. Am I correct in that 
proposition? 

The CHAIR. Substantially, I think. 

Mr. MAYHEW. Now I would like to inquire, Mr. 
Chairman, if it would be proper to move that the conven- 
tion continue to be ready to go into a committee of the 
Whole to consider the next report made by a committee, 
or are they to be taken up in order, and if they are to 
be taken up in order, what order are they to be taken 



112 PRINTING OF COMMITTEE REPORTS 

up in? Is it simply the preamble of the constitution to 
be considered first in the committee of the Whole, or 
can we take up any report that has been made by a 
committee — reported by the committees — and consider 
it in the committee of the Whole? 

The CHAIR. The rules provide that any matter 
which is reported by any standing committee of the 
convention for incorporation into the constitution, 
after being printed in full, shall lie upon the table and 
be printed, and when printed, shall be placed upon the 
calendar and referred to the committee of the Whole. 
The chair does not understand that it requires any 
special motion to that effect. 

Another rule provides that these various reports as 
printed and placed upon the calendar, shall be placed 
upon the calendar in the order in which they are pre- 
sented to the convention. It would be, as a matter of 
course, entirely competent for the convention to sus- 
pend the rules of the convention and take up out of its 
order any one of the reports of the standing committees, 
but without suspension, of course, that could not be 
done. 

Mr. MAYHEW. I would like to inquire, Mr. Presi- 
dent, what report of a committee was the first report 
made. 

The CHAIR. The secretary will please advise the 
gentleman. 

SECRETARY. The first report made was Preamble 
and Bill of Rights; No. 2 is the Militia and Military; 
No. 3, Legislative Department; No. 4, Corporations re- 
port; No. 5, Executive Department. 

Mr. MAYHEW. I would move, if I am in order, 
then, and the chair will inform me if I am not, that 
upon the convening of the convention tomorrow morning, 
after we listen to any reports that may be had, and 
after we get through with the general order of business, 
that we take up and consider in the committee of the 
Whole that article of the constitution on Bill of Rights 
and Declaration. I think they have it here — tomorrow 



PROPOSED ARTICLE ON PROHIBITION 113 

morning — after the morning order and ordinary business 
of the convention. If I can get support for that motion. 
(Motion seconded). 

Mr. SHOUP. There was a memorial referred to the 
committee of the Whole before the Bill of Rights was 
in. Wouldn't that be the first business before the con- 
vention ? 

Mr. MAYHEW. Was that in relation to prohibi- 
tion? 

Mr. SHOUP. Yes, Sir. Well, before we take up the 
Bill of Rights, the first thing in order then would be 
the first thing in the order of business tomorrow morn- 
ing, and I move we take up prohibition. 

The CHAIR. The chair will have to rule that the 
motion of the gentleman from Shoshone is out of order, 
unless accompanied by a motion to suspend the rules. 
The rules provide that these reports must be considered 
in the committee of the Whole in the order in which 
they come in. 

Mr. MAYHEW. That is just what I am trying to 
get at. 

The CHAIR. If the motion covers that, it is un- 
necessary to make it a motion, because that is a part of 
the business under the rules. The chair will submit the 
question to a vote if the gentleman desires. 

PROPOSED ARTICLE ON PROHIBITION. 

Mr. MAYHEW. It is provided in the rules that 
when the committee shall be ready to proceed with the 
order of the day, a motion to go into a committee of the 
whole convention on orders of the day shall have pre- 
cedence over all other matters except motion to adjourn 
or take a recess. Now if it would be in order, I would 
move that we go into a committee of the Whole in the 
consideration of this prohibition matter. (Seconded.) 

The CHAIR. The previous motion is withdrawn? 

Mr. MAYHEW. Yes, Sir. 

The CHAIR. It is moved and seconded that the 

Mr. GRAY. Mr. President, I would say this : That 
there was to be a further hearing on this question of 



114 PROPOSED ARTICLE ON PROHIBITION 

prohibition. There was a communication, as I under- 
stand it, submitted or that was to be submitted, to be 
considered by this convention. 

Mr. MAYHEW. I don't know anything about any 
future communication. This matter is now before the 
convention and should be taken up and considered in the 
committee of the Whole. We are in favor, if I am ifc 
order, to resolve that we consider this matter in com- 
mittee of the Whole at once, or have this matter re- 
ferred to some committee on temperance or prohibition. 

The CHAIR. I would suggest to the gentleman from 
Shoshone, if he will not object, that I received some time 
today — I don't remember when — a communication upon 
this same subject, which, unless there is objection, I 
will pass to the secretary and have read as a connected 
part of the same general proposition. 

Mr. MAYHEW. I will not insist upon my motion 
until this is read. 

The CHAIR. Yes; your motion will be put when 
this is read. 

SECRETARY reads: 

Boise City, Idaho, July 15, 1889. To the Honorable 
President of the Constitutional Convention for the In- 
Coming State of Idaho. Dear Sir: — Will your Honor- 
able Body kindly oblige the National Woman's Suffrage 
Association by granting the undersigned a hearing at 
some hour most convenient for yourselves, at any time 
within the next two days, for the purpose of considering 
the fundamental principles of liberty as women who 
are not prohibitionists understand them. Very re- 
spectfully, Abigal Scott Duniway. 

Mr. MAYHEW. That seems to be rather indefinite 
— the next two days — when the madam will be here to 
lecture us upon that point. As I understand it, this 
communication is to take matters other than the prohibi- 
tion question into consideration. I insist upon my mo- 
tion. ' 

The CHAIR. It is moved and seconded by the gen- 
tleman from Shoshone that this convention now resolve 



PROPOSED ARTICLE ON PROHIBITION 115 

itself into a committee of the Whole for the purpose of 
considering the prohibition proposition. (Vote). The 
chair is in doubt. All those in favor of the proposition 
will rise and stand until counted. 

SECRETARY. Those in favor, 23; opposed, 22, Mr. 
President. 

The CHAIR. The motion prevails and the conven- 
tion has resolved itself into a committee of the Whole. 
The gentleman from Nez Perce, Mr. Reid, will be kind 
enough to take the chair. 

CONVENTION IN COMMITTEE OF THE WHOLE. 

Mr. REID in the Chair. The convention is in com- 
mittee of the Whole on the resolution offered by the 
Ladies of the Woman's Christian Temperance Union. 
Secretary will read the resolution. 

SECRETARY reads: 

ARTICLE 

Section 1. The manufacture, sale, or keeping for sale of 
intoxicating liquors for use as a beverage is hereby prohibited, 
and any violation of this provision shall be a misdemeanor pun- 
ishable as shall be provided by law. 

Sec. 2. The manufacture, sale, or keeping for sale of intoxi- 
cating liquors for other purposes than as a beverage may be 
allowed in such manner only as may be prescribed by law. 

Sec. 3. The general assembly shall at the first session under 
this constitution, enact laws with adequate penalties for its 
enforcement. 

Mr. SWEET. Just read the prohibition question. 

SECRETARY reads: To the Delegates of the Territory of 
Idaho in Constitutional Convention, Greeting: The Idaho Woman's 
Christian Temperance Union request and earnestly pray you, first, 
that in the constitution to be proposed to the citizens of Idaho for 
their approval or rejection, no discrimination on account of sex 
shall be made; but citizens of both sexes, possessing the necessary 
qualifications, shall be equally eligible as electors. Second, that 
the following shall be made an article of said constitution, namely: 

ARTICLE 



Section 1. The manufacture, sale, or keeping for sale of 
intoxicating liquors for use as a beverage is hereby prohibited, 
and any violation of this provision shall be a misdemeanor pun- 
ishable as shall be provided by law. 



116 PROPOSED ARTICLE ON PROHIBITION 

Sec. 2. The manufacture, sale, or keeping for sale of intoxi- 
cating liquors for other purposes than as a beverage may be 
allowed in such manner only as may be prescribed by law. 

Sec. 3. The general assembly shall at the first session under 
this constitution, enact laws with adequate penalties for its 
enforcement. 

The CHAIR. Now read the first section. 

SECRETARY reads Section 1. 

The CHAIR. The section is before the convention 
for consideration as a committee of the Whole. 

Mr. MAYHEW. In order that we may have some 
expression on this matter, I move that the convention 
adopt the section as read by the secretary. We may 
as well do it at once. (Seconded). (Laughter). 

Mr. McCONNELL. Mr. Chairman, I move that it 
be referred to the committee of three consisting of the 
members who were appointed by the chair to escort the 
ladies here, to draft an article. 

Mr. MAYHEW. I call the gentleman to order. 

The CHAIR. What is the point of order? 

Mr. MAYHEW. That it is not an amendment to 
the motion I made for the adoption. 

The CHAIR. The chair holds that the point of or- 
der is well taken. 

Mr. AINSLIE. In order to test the sense of the 
convention, I move the whole subject matter be indefin- 
itely postponed. 

The CHAIR. As a substitute? 

Mr. AINSLIE. Yes, Sir; takes the place of the other 
motion — to indefinitely postpone. 

The CHAIR. The gentleman from Shoshone moves 
that the first section of the article read be adopted by 
the convention; as a substitute the gentleman from 
Boise moves that the whole matter be indefinitely post- 
poned. Is there a second to the motion? (Motion is 
seconded). 

The CHAIR. It is before the convention. Any re- 
marks? 

Mr. MORGAN. Mr. President, I rise to a point 
of order. I think the amendment of Mr. McConnell 



PROPOSED ARTICLE ON PROHIBITION 117 

was in order. I will read the rule upon which I rely. 
(No. 32). "When a question is under debate, no mo- 
tion shall be received but to adjourn, to take a recess, 
to proceed to the orders of the day, to lay on the table, 
for the previous question, to postpone to a day certain, 
to commit, to amend, to postpone indefinitely; which 
several motions shall have precedence of each other 
in the order in which they are arranged." That would 
make his motion to commit to a committee in order. 

The CHAIR. It was not to commit. 

Mr. McCONNELL. Yes, to commit to the commit- 
tee. 

The CHAIR. The motion was to refer it to a com- 
mittee to be appointed by the chair. As I understand 
it, the convention committed this to the committee of 
the Whole and his motion, then, to be in order, would 
have to be that the committee of the Whole report back 
to the house and refer it then with the recommendation 
to the house that it then be referred to the committee. 
As I understand the rule. 

Mr. BEATTY. Before we vote on this question, I 
should like very much to hear from the able member 
from Shoshone who has moved the consideration of 
this subject. I would like to vote upon it intelligently, 
and I have no doubt he can give us some strong reasons 
why we should vote in favor of his motion. I do not 
like to vote ignorantly on the motion and I hope it will 
be properly discussed and that we may hear from the 
able gentleman from Shoshone. 

Mr. MAYHEW. I should say to that, Mr. Presi- 
dent, I decline to address this convention or committee 
upon that question of prohibition, but refer the ques- 
tion back to my friend from Alturas, and let us hear 
from him. 

Mr. AINSLIE. In order to put that motion prop- 
erly Under the rules it has gone to the committee 

of the Whole so that it is already committed. I there- 
fore place the motion in parliamentary language, that 
it report this memorial back to the convention with the 



118 PROPOSED ARTICLE ON PROHIBITION 

recommendation that the matter be indefinitely post- 
poned. (Motion seconded). 

The CHAIR. The gentleman from Boise moves 
that the question now before the house, being the first 
of these several articles under this resolution, be re- 
ported back to the house with the recommendation that 
it be postponed indefinitely. Is the committee ready for 
the question? (Vote). 

The chair is in doubt. All in favor may rise and 
stand until the secretary can count them. 

SECRETARY. In favor, 19; opposed, 23, Mr. 
Chairman. 

The CHAIR. The motion is lost. The question now 
recurs upon the motion of the gentleman from Shoshone, 
that the committee adopt the first section as read by 
the clerk. (Question). (Vote). The noes seem to have 
it. The noes have it, and the section is not adopted. 

Secretary will read Section 2. 

SECRETARY reads Section 2. The manufacture, 
sale or keeping for sale of intoxicating liquors for other 
purposes than a beverage may be allowed in such man- 
ner only as may be prescribed by law. 

Mr. CLARK. Mr. President, I move that when the 
committee rise it recommend to the house the adoption 
of a section which I will send to the clerk as a substi- 
tute for the section now before the committee of the 
Whole. 

SECRETARY reads. The first concern of all good 
government is the virtue and sobriety of the people and 
the purity of the home which all legislation should fur- 
ther by wise and well-directed efforts for the promotion 
of temperance and morality. 

The CHAIR. The section to substitute is before the 
convention. 

Mr. CLARK. In anticipation of the same question 
from the gentleman from Alturas upon my right (MR. 
Beatty), I give my reason for favoring this as a sub- 
stitute. It is a literal transcription of the temperance 
plank of the last republican convention. It commends 



PROPOSED ARTICLE ON PROHIBITION 119 

itself, therefore, to the majority of this body as eman- 
ating from the highest political authority in the land. 

Mr. MORGAN. I would like to hear the substitute 
read again. 

SECRETARY reads the substitute again. 

Mr. MAYHEW. I would like to inquire in what 
part of the constitution the gentleman is going to put 
that. (Laughter). 

Mr. CLARK. In the Bill of Rights. 

Mr. MAYHEW. Very well, then, the motion should 
be that the Bill of Rights be amended or for this to be 
added to the Bill of Rights. 

The CHAIR. Is there a second to the gentleman's 
motion that this be adopted as a substitute? (Motion 
is seconded by several). 

The CHAIR. Are you ready for the question? The 
clerk may read the original section. 

(Secretary reads Section 2 of the memorial; also the 
substitute). 

The CHAIR. The question recurs upon the motion 
of the gentleman from Ada, to adopt the substitute in 
place of the original section as read. 

Mr. SWEET. As this is strictly a non-partisan con- 
vention, I would suggest an amendment to that by ad- 
ding the plank in the democratic platform on the same 
subject. (Laughter). I can't quote it; I don't know 
that platform by heart, but if I can get hold of it I 
will submit it in writing and we will then have a non- 
partisan affair. 

Mr. MAYHEW. I hope the gentleman will have time 
to hunt that up. If he can find any such provision as 
that in the democratic platform, I would like to see it. 
(Laughter). They have been known to steal a good 
deal from the republicans, but I don't think they have 
stolen that. (Laughter). 

Mr. SWEET. Mr. Chairman, I am informed that 
the democratic platform is out of print, but I thought 
it might be committed to memory, probably by the gen- 
tleman from Shoshone. 



120 PROPOSED ARTICLE ON PROHIBITION 

Mr. MAYHEW. I have no doubt but what that 
principle may have been adopted some time in the demo- 
cratic platform, but my recollection of the last fifty 
years is, I never heard of anything of the kind, and I 
will state for the benefit of the other side it has now 
become obsolete. 

Mr. SWEET. I think that is true in part. 

Mr. MAYHEW. No doubt of that, and our repub- 
lican friends, or some of them I know, have adopted our 
democratic principle, the more you drink the wiser 
you get. 

( Question ! Question ! ) 

The CHAIR. Will the gentleman from Latah send 
up the amendment? 

Mr. SWEET. I am unable to reduce it to writing. 

The CHAIR. All in favor of the adoption of the 
substitute of the gentleman from Ada, say aye. (Vote). 
The ayes have it and the substitute is adopted. 

The CHAIR. The clerk may read Section 3. 

SECRETARY reads: 

SECTION 3. The general assembly shall at the 
first session under this constitution, enact laws with 
adequate penalties for its enforcement. 

The CHAIR. What will the committee do with 
this section? 

Mr. MAYHEW. I move its adoption. (Seconded). 

The CHAIR. The motion is that the committee do 
adopt the section as read by the clerk. (Vote). The 
noes have it and the section is rejected. 

The clerk will now read all of the article or any 
part of it for which a substitute has been adopted as it 
will be reported to the convention. 

SECRETARY reads: 

SECTION 2. The first concern of all good govern- 
ment is the virtue and sobriety of the people and the 
purity of the home, which the legislature should further 
by wise and well directed efforts for the promotion of 
temperance and morality. 

The CHAIR. The question now recurs, shall the 



PROPOSED ARTICLE ON PROHIBITION 121 

section as adopted be reported to the convention with 
the recommendation that it be adopted? 

Gentleman from NEZ PERCE. I suggest a change 
in the number of the section. 

The CHAIR. Yes; without objection, it will be 
numbered "Article , Section 1." 

All in favor of the article as adopted, that it be re- 
ported back to the convention with the recommendation 
that it be a part of the constitution, make it known by 
saying aye. (Vote). The chair is in doubt. All who 
are in favor of the article as read by the clerk being 
reported back to the convention, rise and be counted. 

SECRETARY. Ayes, 23. Those opposed, 19. 

The CHAIR. The ayes have it and the article is 
adopted. 

The committee have disposed of the subject ordered 
referred to it. The motion is now in order that the 
committee rise to report progress. 

Mr. WILSON. I move that the committee rise and 
report progress and ask leave to sit again. (Carried). 

CONVENTION IN SESSION — PRESIDENT CLAGGETT IN THE 

CHAIR. 

Mr. REID. Mr. President, the committee of the 
whole house having had under consideration a memorial 
referred to it by the convention, report the following: 

Article — — , Section 1. The first concern of all 
good government is the virtue and sobriety of the peo- 
ple and the purity of the home, which the legislature 
should further by wise and well-directed efforts for the 
promotion of temperance and morality. 

They recommend that this be adopted as a part of 
the constitution. 

The CHAIR. The chair understood that the motion 
was that the committee rise and report progress and 
sit again on this subject. Am I mistaken? 

Mr. WILSON. Yes, Sir; that was the motion I put. 

Mr. REID. Not on this subject, but sit again. 

The CHAIR. Well, if that is the motion, that is, 
what was adopted, I did not so understand the gentle- 



122 PROPOSED ARTICLE ON PROHIBITION 

man. The report of the committee of the Whole, gen- 
tlemen, is that the committee report the pending propo- 
sition back to the convention and report progress there- 
on and ask leave to sit again on this question. 

Mr. MORGAN. If I understood it correctly, the 
committee upon its vote recommended that this become 
a part of the constitution. I suppose it was gotten at 
rather awkwardly. The intention of the committee of 
the Whole was that it be reported back to the conven- 
tion with the recommendation that it become a part 
of the constitution, and the chairman of the committee 
of the Whole has so understood it and so reported it. 

Mr. REID. If that had not been the understanding, 
it would have been out of order, without annulling the 
action taken upon it. Now the question is whether the 
report of the committee be adopted. 

The CHAIR. The chair is, of course, perfectly wil- 
ling to put anything to vote which was reported, but the 
understanding of the chair, was, the motion was that 
the committee rise and report progress and ask leave 
to sit again. No one raising an objection, I assumed 
that that was correct. 

Mr. REID. The question was put to the committee 
of the whole whether it be recommended to the con- 
vention to become a part of the constitution and that 
was submitted on an aye and no vote, and then the 
question was put by the chairman of the committee of 
the Whole that it was then in order to rise and report 
progress. I then understood the gentleman from Ada 
(Mr. Wilson) to make a motion for the committee to 
rise and report progress and sit again on some other 
subject and we had then disposed of it. 

The CHAIR. The chair understands under parlia- 
mentary rules that when an entire proposition is dis- 
posed of and reported, that to report progress and ask 
leave to sit again leaves it in the same position as it was 
in case the resolution or proposition had not been finally 
passed upon. I will ask the gentleman from Ada, Mr. 
Wilson, what the motion was. 



PROPOSED ARTICLE ON PROHIBITION 123 

Mr. WILSON. My motion was that the committee 
rise and report progress and ask leave to sit again; 
that is, leave to sit again on this question. No objec- 
tion was raised and the motion was put and carried, 
and it was perfectly in order for this reason, that the 
special order on which this body went into a committee 
of the Whole was a question of constitutional prohibi- 
tion. My friend from Ada county introduced a substi- 
tute which is not constitutional prohibition. I don't 
know what it is. It is a very nice sentiment because it 
is a portion of the Republican platform of last year, 
but it is not constitutional prohibition and that is what 
we are considering — -what we have been considering in 
the committee of the Whole in order to determine upon 
it, and therefore my motion was perfectly in order and 
was carried. 

The CHAIR. That will be the ruling of the chair 
unless there is further light upon it. The report of the 
committee, gentlemen, is that the committee rise and 
report progress and ask leave to sit again on the propo- 
sition pending before the committee. All those in favor 
of adopting that report signify it by saying aye. (Vote) . 
The chair is in doubt. All in favor of adopting the re- 
port will rise and stand until they are counted. 

SECRETARY reports 17 in favor; 19 opposed. 

Mr. REID. Mr. President, I move that that part of 
the report of the committee of the Whole which recom- 
mended the adoption of the substitute offered by the gen- 
tleman from Ada be now adopted as a part of the con- 
stitution. (Seconded). And on that motion I demand 
the ayes and nays, if I can get sufficient support. (Sec- 
onded). 

The CHAIR. The secretary will call the roll. 

Ayes: Messrs. Allen, Andrews, Armstrong, Batten, 
Beane, Beatty, Brigham, Campbell, Cavanah, Chaney, 
Clark, Coston, Crook, Crutcher, Gray, Hagan, Hammell, 
Hampton, Hasbrouck, Hays, Hendryx, Hogan, Howe, 
Kinport, Lamoreaux, Lewis, McConnell, Melder, Myer, 
Morgan, Pefley, Pierce, Pinkham, Poe, Pritchard, Pye- 



124 PROPOSED ARTICLE ON PROHIBITION 

att, Reid, Salisbury, Sinnott, Shoup, Standrod, Sweet, 
Taylor, Underwood, Wilson and Mr. President. 46. 

Nays: Messrs. Ainslie, Harris, King, Lemp, May- 
hew. 5. 

Mr. MAYHEW. Mr. President, I desire to change 
my vote. I vote aye. (Laughter). 

The CHAIR. Forty-seven votes in favor of the 
adoption of the motion that was made by the gentleman 
from Nez Perce, and 4 against. The motion is adopted. 

Mr. REID. In order to dispose of it finally, I 
move that the motion by which it was adopted be re- 
considered and that that motion lie on the table. (Sec- 
onded). 

The CHAIR. It is moved and seconded that this 
motion by which the report of the committee of the 
Whole was adopted, be reconsidered and that the motion 
to consider shall lie upon the table. (Vote). The 
chair is in doubt. 

Rising vote shows 32 in favor, 30 opposed. 

Mr. MAYHEW. I now move that the adoption of 
that portion just read and adopted by this convention 
as a part of the constitution, be made a part of the 
Bill of Rights. (Seconded). 

Mr. REID. I rise to a point of order. The con- 
sideration of the Bill of Rights is not before the con- 
vention and should be considered in committee of the 
Whole, and furthermore, I think that falls within the 
province of the committee on Revision anyway. 

Mr. MAYHEW. I wanted it in a prominent place. 
The CHAIR. The chair holds the point of order 
well taken. What is your further pleasure? 

Mr. BEANE. I move that we adjourn until 10:00 
o'clock tomorrow morning. (Seconded). 

The CHAIR. It is moved and seconded that the 
convention adjourn until 10:00 o'clock tomorrow morn- 
ing. (Carried). 



TENTH DAY 125 

TENTH DAY. 

Tuesday, July 16, 10:00 o'clock A. M. 

Convention called to order by the president. 

Prayer by Chaplain Smith. 

ROLL CALL. Present: Messrs. Ainslie, Allen, 
Andrews, Armstrong, Batten, Beane, Beatty, Bevan, 
Brigham, Campbell, Cavanah, Chaney, Clark, Coston, 
Crook, Crutcher, Gray, Hagan, Hammell, Hampton, 
Hasbrouck, Hays, Heyburn, Hogan, Howe, King, Kin- 
port, Lamoreaux, Lemp, Lewis, Maxey, Mayhew, Mc- 
Connell, Melder, Myer, Morgan, Pierce, Pinkham, Poe, 
Pritchard, Pyeatt, Reid, Salisbury, Savidge, Sinnott, 
Shoup, Standrod, Taylor, Underwood, Whitton, Wilson, 
Mr. President. 

Excused: Messrs. Ballentine, Glidden, Harkness, 
McMahon, Moss, Stull, Vineyard. 

Absent: Blake, Harris, Hendryx, Jewell, Pefley, 
Robbins, Steunenberg, Sweet, Woods. 

Journal of yesterday read by secretary, and ap- 
proved. 

Mr. SHOUP. I believe there are some members 
of the convention present who have not taken the oath. 

The CHAIR. Will the gentleman inform the chair 
who they are? 

Mr. SHOUP. Mr. Anderson from Bingham and Mr. 
Heyburn from Shoshone. 

The CHAIR. The delegates present who have not 
been sworn in as members of this convention, will please 
rise. 

(Messrs. Heyburn arid Anderson sworn). 

The CHAIR. If there are no objections, the reading 
of the report of the Ways and Means committee will be 
dispensed with. Any corrections to be proposed? 

Mr. AINSLIE. I believe I was here at roll-call, Mr. 
President. I am reported absent. 

Mr. CLARK. I was in before the conclusion of 
roll-call. I would like to have the entry so made. 

The CHAIR. If there are no further corrections, 
the journal will be considered as approved. 



126 PETITIONS AND MEMORIALS 

PRESENTATION OF PETITIONS AND MEMORIALS. 

Mr. BEATTY. Mr. President, I will move to sus- 
pend the rules for the purpose of making a motion. I 
believe that this convention should hear the representa- 
tives of all causes, whether we believe in those causes 
or not. A lady is present who has a national reputa- 
tion, and desires to address this convention. I believe 
her written communication is before the convention. 
I move you, therefore, that the rules be suspended for 
the purpose of making the motion that she be allowed to 
address this convention at such time as may be agreed 
upon. She is present this morning and 1 suppose would 
like to have some disposition made of her communication 
before the convention. It was passed over yesterday, I 
think, without objection offered and informally. 

Mr. AINSLIE. Before that motion is put, I desire to 
offer an amendment in order not to delay members here 
in committee business, that when the convention ad- 
journs today, it adjourn to meet at 8:00 o'clock tonight 
for the purpose of hearing the lady on this subject. 
(Seconded). 

The CHAIR. It is not necessary to make any motion 
to suspend the rules, as I understand it. This petition 
was presented upon yesterday and sent up before the 
convention in the regular order of business on Petitions 
and Memorials. 

Mr. BEATTY. Then I will withdraw that motion 
and Mrs. Duniway may be heard at the hour of 8:00 
o'clock this evening, if that will suit her. I don't know 
whether that hour will suit her or not. 

The CHAIR. It is moved and seconded that when 
this convention adjourns, it adjourn to meet at 8:00 
o'clock this evening, for the purpose of affording Mrs. 
Duniway the opportunity of presenting before this con- 
vention the propositions which are contained in the 
petition presented by her on yesterday. 

(Motion put and carried). 



ARTICLE I.— PREAMBLE AND BILL OF RIGHTS 127 

REPORTS OF STANDING COMMITTEES — SEAT OF GOVERN- 
MENT, ETC. 

SECRETARY reads as follows: 

"To the President and Members of the Constitutional 
Convention : Your committee on Seat of Government, 
Public Institutions, Buildings and Grounds, respectfully 
submit the accompanying report. FRANK P. Cavanah, 

Chairman. 

The CHAIR. The report will lie upon the table to 
be printed. Any further reports from standing com- 
mittees? Reports from select committees? Final 
readings? That exhausts the regular order of business 
for the day, gentlemen, so far as reports are concerned. 

Mr. SHOUP. Mr. President, I move that the con- 
vention go into a committee of the Whole on the orders 
of the day. (Seconded by Gray). Motion put and car- 
ried. 

The CHAIR. The gentleman from Custer, Mr. 
Shoup, will take chair. 

Mr. SHOUP. Mr. President, I suggest that the first 
matter under consideration is the Bill of Rights, and I 
am chairman of that committee ; I ask that some other 
member be called to the chair. 

The CHAIR, The Vice-President, Mr. Reid. 

Mr. REID. Mr. President, I ask to be excused. I 
have some amendments to offer for that bill and suggest 
the gentleman from Bingham until the first bill is dis- 
posed of and then I will relieve him. 

COMMITTEE OF THE WHOLE. 

Mr. MORGAN in the chair. 

ART. I. — PREAMBLE AND BILL OF RIGHTS. 

The CHAIR. Gentlemen, the convention is now in a 
committee of the Whole. What is your pleasure? The 
report of the committee on Preamble and Bill of Rights 
is in order. The secretary will read the first section, 



128 ARTICLE L, SECTION 3 

SECTION 1. 

SECRETARY reads Article L, Section 1. All men 
are by nature free and equal, and have certain inalien- 
able rights, among which are enjoying and defending 
life and liberty; acquiring, possessing and protecting 
property; pursuing happiness and securing safety. 

Mr. SHOUP. Mr. President, I think the preamble 
should be first read and considered. 

SECRETARY reads Preamble as follows: 

We, the people of the State of Idaho, grateful to 
Almighty God for our freedom, to secure its blessing and 
promote our common welfare, do establish this Consti- 
tution. 

The CHAIR. The secretary suggests that under the 
rules, the Preamble is to be last read and last consid- 
ered. What is the number of the rule? 

Mr. WILSON. Rule 49. 

The CHAIR. The chair holds that under the rule 
the Preamble should be last read and considered. Then 
what shall we do with the first section? 

Mr. ALLEN. Mr. President, I move its adoption. 
(Seconded). 

The CHAIR. Are you ready for the question, gen- 
tlemen? (Question put and adopted). 

SECTION 2. 

SECRETARY reads Section 2: All political power 
is inherent in the people. Government is instituted for 
their equal protection and benefit, and they have the 
right to alter, reform or abolish the same, whenever 
they may deem it necessary; and no special privileges or 
immunities shall ever be granted that may not be altered, 
revoked or repealed by the Legislature. 

Mr. HARRIS. I move the adoption of Second Sec- 
tion. (Seconded). Motion put and carried). 

SECTION 3. 

SECRETARY reads Section 3: The State of Idaho 
is an inseparable part of the American Union, and the 



ARTICLE L, SECTION 4 129 

Constitution of the United States is the supreme law of 
the land. 

(It was moved and seconded that it be adopted. Car- 
ried). 

SECRETARY reads Section 4 : 

1 Section 4. 1 The exercise and. enjoyment of religious faith 
and worship shall forever 

2 be guaranteed; and no person shall be denied any civil or 
political privilege or 

3 capacity, on account of his religious opinions; but the liberty 
of conscience hereby secured 

4 shall not be construed to dispense with oaths or affirmations, 
or excuse acts of licentious- 

5 ness or justify polygamous or other pernicious practices, in- 
consistent with morality or the 

6 peace or safety of the State; nor to permit any person, or- 
ganization or association to 

7 directly or indirectly aid or abet, counsel or advise any person 
to commit the crime of 

8 bigamy or polygamy, or any other crime. No person shall be 
required to attend or sup- 

9 port any ministry or place of worship, religious sect or de- 
nomination, against 

10 his consent; nor shall any preference be given by law to any 
religious denomination or 

11 mode of worship. 

It is moved and seconded that it be adopted. (Mr. 
Ainslie and Mr. King rise). 

The CHAIR. I recognize Mr. King. 

Mr. KING. Mr. President, I desire to amend that 
section. Not that I have anything against the words 
that I propose to strike out. I propose to amend by 
striking out all after the word "opinions" in the third 
line and to the word "crime" in the eighth line of the 
printed bill in the 4th section. My reason for doing it 
is that it seems to me the words I propose to strike out 
are utterly unnecessary. The first line asserts a prin- 
ciple that every man, I believe, in this territory agrees 
to, that "The exercise and enjoyment of religious faith 
and worship shall forever be guaranteed." I presume 
there is not a man in the territory of Idaho that would 



1 — From a copy of the section as reported. 



130 ARTICLE I., SECTION 4 

object to that. "And no person shall be denied any 
civil or political right ■" 

Mr. BEATTY. I rise to a point of order. The gen- 
tleman is speaking on a question that is not before the 
house. 

Mr. MAYHEW. Well, I second the amendment in 
order that the gentleman may be heard. 

The CHAIR. Proceed, Mr. King. 

Mr. KING. The second thing in this is, "And no 
person shall be denied any civil or political right, privi- 
lege or capacity on account of his religious opinions." 
That is a simple statement of fact that I do not suppose 
you could find a man within five thousand miles of here 
that would object to. "But the liberty of conscience 
hereby secured shall not be construed to dispense with 
oaths or affirmations." Now, why that is put in I 
haven't any earthly conception. Does the granting to a 
man — guaranteeing to him his religious faith and wor- 
ship and guaranteeing to him protection that he shall 
not be deprived of any of his political rights or privi- 
leges or capacity — is there anything in those rights that 
by any possible power of construction would lead a man 
to suppose that he could claim exemption from being put 
under oath or affirmation? If the clause read "that 
the liberty of conscience hereby secured should not be 
construed to dispense with oaths," then it might inter- 
fere with a man's religious faith, because we know that 
there are large bodies of men all over the world who 
have conscientious scruples about taking an oath, but 
they are perfectly willing to affirm. Secondly, a man 
could not under the exercise of the two clauses I have 
read, guaranteeing religious faith and that no man 
"shall be deprived of his civil or political rights, privi- 
leges or capacity on account of his religious opinion" — 
no man could claim to be exempt from taking an oath 
or affirming, one or the other. Then why put that in 
there? Of course, no man would expect, under the clause 
giving him freedom of worship, that he could claim ex- 
emption from taking an oath or an affirmation if he 



ARTICLE I., SECTION 4 131 

be put before a jury, if he is brought up to testify as to 
whether he will support the constitution of the state or 
the United States, or any other necessary clause in the 
trial of a suit, and claim that he could neither be com- 
pelled to take an oath or affirmation because the state 
had guaranteed to him his religious freedom. I don't 
see any necessity for putting that clause in. I cannot 
conceive that it is possible that any man should have 
an intellect so obtuse as to claim under those guarantees 
for freedom of religious worship, the freedom or right 
to be exempt from either taking an oath or affirmation 
in the ordinary affairs of life. But yet, if you put that 
in, it would seem to hold to the idea that you might put 
in a clause relating to oaths and affirmations that would 
interfere with the rights that are guaranteed. Then 
it goes on with the disjunctive conjunction, if you will 
fill up the ellipsis, "but the liberty of conscience hereby 
secured shall not be construed to dispense with oaths or 
affirmations, or excuse acts of licentiousness or justify 
polygamous or other pernicious practices, inconsistent 
with morality or the peace or safety of the state." Why 
put that in ? I cannot conceive. Simply because the state 
guarantees a man his right to religious liberty and that 
he shall never be deprived of any of his privileges as a 
citizen on account of his religious belief; to say that 
these clauses shall not be construed to prevent laws from 
being enacted to prevent men from the commission of 
crime! You might continue that clause indefinitely, al- 
most, and say that these clauses shall not be construed 
to excuse acts of licentiousness, polygamous or other 
pernicious practices inconsistent with morality or the 
peace of the state. Is there anything in the first two 
sections there that by any possible construction, a man 
could claim a right to practice any of those things? 
Could any man possibly claim a right to act in a licen- 
tious or polygamous manner or any other pernicious 
manner inconsistent with morality or the peace of the 
state, simply because he had been allowed the right ot 
freedom to worship God as he saw proper, and to guar- 



132 ARTICLE I., SECTION 4 

antee to him his rights and liberties and privileges as 
a citizen that they should not be taken from him on 
account of his religious belief? Could a man under 
either of those clauses claim to have the right to act 
in a manner contrary to the natural and moral law of 
the country? Certainly not. It seems to me a jest, 
Then why insert these clauses in there? They add no 
force; they add no limit, as I can see, to the powers 
granted in the first two clauses. Then it seems to me 
unnecessary to put this in. It goes on then: This sec- 
tion shall not be construed so as to "permit any person, 
organization or association to directly or indirectly aid 
or abet, counsel or advise any person to commit the 
crime of bigamy or polygamy or any other crime." 
We might insert any amount of crimes there; murder, 
treason, robbery and all that. Is there any person in 
the world that would claim exemption from punishment 
and the loss of his liberty, of his rights as a citizen on 
the ground that, though he had committed those acts, 
he had been granted religious liberty? Why, it is ab- 
surd to think any living man would claim exemption 
from these crimes. I cannot see that it is any use to 
put these clauses in. They have no force, no bearing, 
they assert no principle ; they are not in accordance with 
the first and second clauses; have no connection with 
them that I can see. There is no reason to suppose 
any man would claim a right to do these acts simply 
because he had been guaranteed the right of freedom 
to worship. Then I say it is useless to put that in. 
Therefore I would strike it out. Now the next two 
clauses I am perfectly satisfied with: "No person shall 
be required to attend or support any ministry or place 
of worship, religious sect or denomination, or pay tithes 
against his consent; nor shall any preference be given 
by law to any religious denomination or mode of wor- 
ship." Probably not a man in the house would dispute 
that, or in the state, but I can't see why it is necessary 
to put it in the constitution. Why, we are asserting 
principles, asserting something that has no bearing 



ARTICLE I., SECTION 4 133 

upon this particular place that it seems to make an ex- 
ception of. 

(Question!). 

The CHAIR. The gentleman will send his amend- 
ment to the secretary. 

SECRETARY reads: I move to amend Section 4 
by striking out all the words between the word "opin- 
ion" in the third line to "crime" in the 8th line. 

CHAIR. Are you ready for the question? (Ques- 
tion, question). (Motion put and lost). 

Mr. AINSLIE. I desire to offer an amendment to 
Section 4. 

SECRETARY reads: To amend Section 4 by con- 
tinuing after "worship" at the end of line 11, the fol- 
lowing: Bigamy and polygamy is forever prohibited 
in the state and the legislative assembly shall provide by 
law for the punishment of such crimes. (Seconded). 

Mr. AINSLIE. In reading this Bill of Rights over, 
I find nothing in here in regard to these two offenses 
except by implication in the preceding line of Section 4. 
Now this question of bigamy and polygamy has been an 
important question in the politics of this territory, and 
I believe the republican party have posed as the 
champions of domestic virtues and the great foe of 
bigamy and polygamy. In the report made by the com- 
mittee, of which the majority are republicans, and the 
chairman is a republican, I fail to find any denunciation 
of these two heinous offenses. Now, sir, as the demo- 
cratic party has been placed in the false position — the 
attempt has been made to place the democratic party 
in a false position in this territory as being the apolo- 
gists and defenders of these polygamous practices of 
Mormonism, I desire to say I do not wish to leave that 
question to the fluctuations of legislative assemblies, the 
complexion of which may be changed every two years. 
I desire to plant in the organic law of the land, the 
constitution for the state of Idaho itself, the principle of 
opposition to these two offenses, and place the two 
political parties squarely upon that issue here today. 



134 ARTICLE I., SECTION 4 

If the republicans are honest in their denunciations of 
bigamy and polygamy and they doubt the honesty of the 
democratic party as represented by this convention 
through their delegates upon this question, let that 
show, sir, upon the call of the roll or upon the vote 
taken in this committee and upon the call of the roll in 
the convention, as to whether the two parties are honest 
or not in their attempts to stamp out this twin relic of 
barbarism. Now, sir, I move that as an amendment to 
that section. 

Mr. BEATTY. I am very glad indeed to find that 
my friend from Boise takes the position he does upon 
this question. I congratulate myself as chairman of 
the committee on Elections and Suffrage, that when the 
important question comes before that committee, as it 
will when the committee meets, that my friend here 
will not be in opposition to the strong position that the 
republicans of that committee will take upon that ques- 
tion. This amendment he now proposes to this section, 
will be in part as a duplication of what I know will be 
proposed and upheld before that committee on Elections. 
I will say, however, that I will not object to this amend- 
ment, for one, for I do not care how often that prin- 
ciple — that principle of bitter opposition to these crimes 
— shall appear in this constitution. I want the people 
of Idaho and the people of the world to know that the 
republican party and the democratic party, or, in other 
words, the loyal American people of the state of Idaho 
is opposed — are opposed to that crime. And therefore 
I say let it appear in this constitution, if my friend 
desires, in every section of the constitution, and he will 
not find this republican, for one, voting against it as 
often as it may come up. (Applause on the republican 
side) . 

Mr. SHOUP. I would like to hear that amendment 
read. 

SECRETARY reads as follows: To amend section 
4 by continuing after "worship" at the end of line 11, 
the following: "Bigamy and polygamy is forever pro- 



ARTICLE I., SECTION 4 135 

nibited in the state and the legislative assembly shall 
provide by law for the punishment of such crimes." 

Mr. REID. Mr. President, I suggest that the word 
"is" be stricken out and the word "are" put in, as an 
amendment to the amendment. They are two distinct 
crimes. 

The CHAIR. Is the amendment accepted? 

Mr. AINSLIE. I do not care anything about the 
construction of it so the sentiment is inserted. 

The CHAIR. The chair will recognize the gentle- 
man from Custer if he wishes to address the house. 

Mr. SHOUP. I have no objections to that amend- 
ment if it cannot be in any way construed as imposing 
any restrictions upon the legislature in this matter. 
From the reading of it, I am not able to see that it 
will. 

Mr. BEATTY. I will call for the reading of the 
.jjaon again, the amendatory portion. 

SECRETARY reads : To amend Section 4, etc. 

(Question! Question!). Question put and amend- 
ments is adopted. 

Mr. MAYHEW. I now move the adoption of the 
section as amended. (Seconded). 

Mr. HEYBURN. I desire to move an amendment to 
the section, with your permission, on Bill of Rights. 
Amend by inserting in the 4th line, after the word 
with," the word "such," and after the word "affirma- 
tions," the words "as may be required to be done before 
exercising the right of franchise or acquiring any por- 
on of the public lands as provided by this constitution 
or the laws of the state." 

Mr. AINSLIE. I think that properly belongs to 
the committee on Suffrage. This is endeavoring to 
usurp the functions of another committee of which the 
gentleman from Alturas is the chairman, and I think 
the committees will be able to dispose of that matter 
and report it to the convention without incorporating 
it in another place where it has not been considered. 



136 article i., section 4 

lL] : . >. ■ 

Mr. MAYHEW. I would like to hear the amend- 
ment read. 

SECRETARY reads: To amend by inserting in the 
4th line, etc. 

Mr. HEYBURN. Mr. President, the object in of- 
fering that amendment is to reserve to the committee, 
to which the gentleman has referred, the powers that 
are vested in it and to reserve to this convention the 
power and authority to make such provision as it may 
see fit; to reserve to the legislature of this territory the 
power to provide for these oaths and affirmations. That 
is the primary cause of inserting it in this clause. It 
reads: "But the liberty of conscience hereby secured 
shall not be construed to dispense with oaths or affirma- 
tions, or excuse acts of licentiousness," etc. It simply 
defines the nature and character of oaths that shall 
not be excused by the special clause contained in the 
first three lines of this section, so that it will provide 
it shall not be construed to dispense with such oaths 
and affirmations as may hereafter be provided to be 
taken before exercising these two rights — the right of 
franchise, leaving it open to this convention and to that 
committee to take such action as they may deem proper 
and leave it also open to the legislature to take such 
action as it may deem proper in reference to these 
oaths. 

Mr. BEATTY. I would like to hear the section read 
as proposed to be amended. 

SECRETARY reads. 

Mr. MAYHEW. Mr. President, I can't say that I 
am opposed particularly to the incorporating in this sec- 
tion of the amendment proposed by the member from 
Shoshone (MR. Heyburn) provided it does not appear 
in any other article in this constitution. It strikes me, 
however, that the amendment is a good one and should 
appear in some part of the constitution, but my impres- 
sion at present is it belongs to that portion of the con- 
stitution in relation to franchises and elections. I am 
not opposing the amendment, the principle to be incor- 



ARTICLE I., SECTION 4 137 

porated, but I think it should come in that portion of 
the constitution. I do not want to be considered as op- 
posing the principle enunciated by this amendment, but 
I think it belongs in another part of the constitution — 
to another article. 

Mr. BEATTY. I am with the member from Sho- 
shone who last addressed the committee. I do not 
oppose the principle, but I have this to suggest: That 
certainly will be provided for, at least we will attempt 
to have that provided for in the report of this committee 
to which reference has been made. Now the question in 
my mind is whether we had better encumber our con- 
stitution with too many qualifications. This constitution 
is to go before congress. It has to act upon it, and I 
do not, for one, want to get these matters repeated in 
section after section so that congress will think we are 
wild and may induce them to reject our work. Now the 
sentiment is all right and certainly every member here 
knows that they must be embodied in the provisions 
which will be reported by the committee on Suffrage and 
Elections. Now I believe as the gentleman from Sho- 
shone (Mr. Mayhew.) I am in favor of the motion 
suggested — I think it will not interfere with any action 
that may be taken by that committee, but it certainly 
will result in a repetition of the same matter in the 
constitution. Now, there is another thing I am watch- 
ing. I don't know what we propose to do, whether when 
we get through with this bill of rights we will then make 
a motion which will make it substantially a part of the 
constitution and cannot be changed by any subsequent 
act, or which will prevent us from afterwards proposing 
anything in conflict with it. I am inclined to think in 
going ahead now and adopting this without knowing 
what provisions will be reported by the other committee, 
we are somewhat at sea, but at all events, if we put 
this duplication in here, I don't want it in such shape 
that we cannot afterwards amend it so as to make it in 
harmony with the report of the committee on Elections, 
and I must say I doubt the propriety of putting it in 



138 ARTICLE I., SECTION 4 

here, because it certainly ought to appear in the other 
report. 

Mr. SWEET. I hope the amendment offered by the 
gentleman from Shoshone will be adopted. I don't 
think it is in place in this section, or, rather, I did not 
think it ought to have any place in this section until 
the amendment offered by the gentleman from Boise 
was adopted. But I do think that since the first amend- 
ment has been adopted, the second amendment is neces- 
sary, and I think further m continuing the thought ad- 
vanced by the gentleman from Alturas, that if we at- 
tempt to make political records instead of a constitution, 
that we will very likely wind up with a constitution 
that we will have to call upon the Supreme Court to 
interpret, the first thing we do, and we will be likely to 
so mix this question up between suffrage and constitu- 
tional provisions that the first act passed by the legis- 
lature adding an additional qualification for suffrage 
will be found to be unconstitutional by the Supreme 
Court. I think it will be the duty of the legislature to 
prescribe the punishments and penalties for polygamy 
and bigamy and unlawful cohabitation and all that 
stuff, and I am in favor of inserting such a clause in 
the constitution in some place (if it should be necessary) 
as will enable them to do so. But when it comes to 
having this matter involved in every section, nearly, of 
the constitution, then I think we are absolutely endan- 
gering our ability to take care of it through the legis- 
lature. And I propose and insist that this convention 
guard against the privilege of the legislature to treat 
this question in every way, shape or form in which it 
may be presented from time to time after we have be- 
come a state and it becomes the duty of the legislature 
to meet it. I do not know, Mr. Chairman, that the two 
amendments, the one suggested by the gentleman from 
Boise and the other by the gentleman from Shoshone, 
will be likely to result in any such danger, but certainly 
it has gone far enough in the matter, and I do not think 
there will be any doubt about the understanding of the 



ARTICLE I., SECTION 4 139 

sentiment and opposition of this convention on the 
question of polygamy when the clause relating to the 
right of suffrage is presented. I therefore think the 
less we encumber the matter by leaving the legislature 
to worry in the premises, the better it will be for us. 
But as I said before, since the first amendment has gone 
in, I think it essential there in order that it may be 
clearly understood that the amendment proposed by the 
gentleman from Shoshone go in also and I therefore hope 
that it may be adopted. 

Mr. HEYBURN. Before taking a vote on this, inas- 
much as some gentlemen seem to have misapprehended 
the meaning of the mover of this amendment, I desire 
to call your attention to the first and second lines in 
this section that is proposed to be amended, which reads : 
"The exercise and enjoyment of religious faith and 
worship shall forever be guaranteed." Now I am not 
addressing myself to any party or the members of any 
party; but I am addressing myself to every member of 
this convention who is opposed to the institution of 
polygamy and bigamy as it is embodied in the Mormon 
church, and the object of offering this amendment grows 
out of the fact that one of the arguments that have taken 
place in the Supreme Court of this territory 1 and else- 
where against the validity of the test oaths that all peo- 
ple have been required to take, is that it is a violation of 
these principles and would be a violation of these two 
first lines of Section 4, and in order that it may never 
be said in argument in the court hereafter, 
or elsewhere, that the makers of this constitu- 
tion did not intend to except that institution 
out of the provisions of those two first lines 
of Section 4, I hope that this convention will put 
it in such language that there will be no uncertainty 
about it, and for that purpose I move this amendment, 
so that it shall read, first, that these things shall be 
guaranteed to all people — that the enjoyment of relig- 



*— See Innis v. Bolton, 2 Ida. 442. 
Wooley v. Watkins, 2 Ida. 590. 



140 ARTICLE I., SECTION 4 

ious faith and worship shall forever be guaranteed, and 
then let this convention state in the constitution that 
it was never contemplated that these things come within 
the scope of religious faith and worship, or the enjoy- 
ment of religious faith and worship, by stating so on 
the face of the constitution itself and excepting these 
institutions from out of the operation of the grace of 
this clause, so that if, as the gentleman from Alturas 
would seem to indicate, we were encroaching upon the 
functions of another department of the constitution, 
this does not provide that any test oath or any other 
oath or affirmation shall ever be required. It simply 
leaves it open for this constitution in express terms to 
require, if it is deemed wise, and leaves it open for the 
legislature of the state, if this constitution shall endow 
it with the power, to provide and protect itself against 
this institution. And it seems to me that it is in entire 
harmony with the sentiments that are expressed by 
both the gentleman from Boise and the gentleman from 
Alturas and the gentleman from Latah, that we shall 
express our principles upon this question in no uncer- 
tain terms, but so certain that it will not be a case for 
the Supreme Court or any other court to interpret the 
constitution as to what we mean when we say "religious 
liberty," and the right to worship God as man pleases 
shall be one of the fundamental rights of every citizen, 
so that it will not be a question for interpretation, but 
a question of the plain letter of the statute, and with 
those omitted, there will always be that argument to be 
met that Section 4 of your constitution guarantees us a 
right that the section that afterwards prescribes the 
suffrage of the citizen denies us, and the constitution on 
its face is inconsistent. It is against that evil that we 
desire to protect ourselves by this amendment. 

Mr. HAGAN. The amendment goes to that portion 
of that section which originally is aimed at this propo- 
sition — that the liberty of conscience shall never be so 
construed as to dispense with oath or affirmation in 
relation to certain pernicious practices mentioned in 



ARTICLE I., SECTION 4 141 

the section. Now the amendment is wider. If the clerk 
will read this amendment again. The amendment does 
not propose to confine this oath to the subject the sec- 
tion itself did. 

SECRETARY reads: "Amend by inserting in the 
fourth line after the word "with," the word "such," 
and after the word "affirmations," the words, "as may 
be required to be done before exercising the right of 
franchise or acquiring any portion of the public lands 
as provided in the constitution or by the laws of the 
state." 

Mr. HAGAN. We have nothing to do with the dis- 
posal of the public lands of the United States, nor can 
our constitution or our statutes impose upon the subject 
or citizen any unnecessary oaths or affirmations in the 
entry of public lands, nor does this section propose to 
deal with that subject. Now, as was remarked by the 
gentleman from Alturas, there is a report which is bound 
to come before this convention that will cover this field 
so far as elections are concerned. I know of no report 
that will come here concerning the disposition of public 
lands, because we are limited by the constitution of the 
United States as to that subject. I do not believe in the 
amendment for the reason that it is not in harmony 
with the section itself and does not strike where it 
should. The oaths or affirmations provided for in that 
section refer, as the context shows, to the excusing of 
acts of licentiousness, or justifying polygamous or other 
pernicious practices inconsistent with morality and the 
peace and safety of the state. These are the oaths and 
affirmations spoken of in this section, and I think, with 
all due deference to the vote of the convention, as a 
lawyer, that all of that is entirely unnecessary because 
no court, no lawyer or no constitution as ever construed 
— in fact, the Supreme Court of the United States has 
decided that the liberty of conscience would not excuse 
a person from taking oaths or affirmations required by 
law to prevent just such crimes as are provided for in 



142 ARTICLE I., SECTION 4 

that section. In the case of People vs. Reynolds, 1 lib- 
erty of conscience was set up and the Supreme Court of 
the United States decided upon it. I think if it is here 
as a declaration of our principles, it may well stand; 
as a lawyer drawing a constitution I would say it is 
entirely unnecessary to have it there at all; I voted to 
retain it there, but I say the amendment does not apply, 
in my opinion, to the subject to which consideration is 
had in the section itself. I therefore think it should be 
rejected. And I think it ought to be rejected on the 
other ground stated by the gentleman from Alturas, 
that if we are here to reiterate and repeat in every 
article of this constitution something that we must anti- 
cipate in another section, we certainly will have after 
a while an incongruous and inconsistent mass of stuff 
clear through it. So far as election is concerned and 
suffrage is concerned, there is a competent committee 
that will report here in due time upon that subject in 
this convention and the convention will declare its prin- 
ciples upon this subject. I therefore hope the amend- 
ment will not prevail. 

Mr. HEYBURN. As a matter of correction, draw- 
ing the attention to the point in reference to public 
lands, I did not suppose for a moment we would ever 
have any control of the public lands of the United States, 
but it is to be hoped that this state will possess the 
public school lands, the university lands and a large body 
of other lands such as may be donated to it, and it was 
looking to the protection of those lands that the amend- 
ment embodying that principle was made. 

Mr. HAGAN. I will ask the gentleman if there is 
any committee on this subject that will report here upon 
the public lands of the territory or the state. 

The CHAIR. There is such a committee. 

Mr. AINSLIE. There is one view I think has es- 
caped the attention of the gentleman from Shoshone, 
if you read carefully the section where it is proposed to 
make this interlineation or amendment on the question of 



-98 U. S. 145, 25 L, 244, affirming 7 Utah 319. 



ARTICLE L, SECTION 4 143 

"liberty of conscience as hereby secured shall not be con- 
strued to dispense," etc. Now the original text of the 
report is "dispense with oaths or affirmations" which 
covers every case where oath or affirmation might be 
required by the legislature, such as verification of plead- 
ings in civil actions, or the oath of a witness in court 
or his affirmation in court. Now to restrict it in terms as 
proposed by the gentleman from Shoshone, that it shall 
not be intended to dispense with such oaths and affirma- 
tions as shall be required to be taken before exercising 
the right of franchise and public lands, would put it in 
a restrictive sense and deny the right of the legislature 
to provide for oaths and affirmations of witnesses in 
court or in verification of pleadings. Now the report 
by the gentleman from Custer County would leave it 
open for the legislature to provide for all of these oaths 
and affirmations wherever they thought it necessary. It 
is controlled in its scope and actions by necessity. The 
language used by the gentleman from Shoshone, it seems 
to me, would confine it exclusively to oaths provided by 
the legislature in the exercise of the right of suffrage 
and public lands. 

Mr. BEATTY. Mr. President, I want to re- 
fer to one other matter, and that is the dif- 
ficulty the state of Nevada 1 got into and also 
the state of Wisconsin. 2 There is a decision 
from each of those states upon this question. 
The constitution attempted to prescribe, or did prescribe, 
the qualifications for its electors. The result was when 
Nevada attempted to pass a law recently to prevent 
Mormons from voting, they found it was construed to 
be in conflict with the constitution and the law was held 
invalid. Now I don't want to be understood to say that 
the amendment which the gentleman from Shoshone 



1 — See Whitney v. Findley, 20 Nev. 198, construing Sec. 7, Art 2, 

Nevada Const. 
2 — State v. Williams, 5 Wis., 308, construing Sec. 8, Art. 13, 

Wisconsin Const., and State v. Baker, 38 Wis., 86; both cited 

in the Nevada case. 



144 ARTICLE I., SECTION 4 

brought in here as they come, with little chance for 
deliberation and final consideration, I fear we may 
proposes will have that effect. These amendments being 
adopt something that will operate in that restrictive form 
to which the gentleman from Boise has referred, and 
which I know has so disastrously operated in the case 
of Nevada as well as in Wisconsin. And if I did not 
think this matter would be fully provided for in the 
committee on Elections and Suffrage, I certainly would 
be in favor of introducing it here. But it certainly will 
be provided for in that committee, and I will say in 
stronger terms than these — in as strong terms as can 
be framed by the use of the English language. I must 
deprecate the idea of putting too many duplications in 
this constitution, unless the convention will finally give 
the committee on Revision the power of eliminating 
these duplications so as to have it appear harmonious. 
I don't know that it will have that power, but if it has 
that power, our actions here would not be regarded as 
final and the committee will eliminate these duplications 
thus proposed. We can correct them. But I hope we 
will not by amendments put on here in a hurry tie our- 
selves up so that the legislature cannot from time to 
time add additional qualifications for suffrage so as to 
meet the schemes of the Mormon church. We know how 
they operate, and it is in the intention of the committee to 
which I have referred, when they make their report, to 
leave the legislature alone in the future to meet these 
questions. I have been trying to convince myself that 
the member from Shoshone, the mover of this amend- 
ment, is right, but I am unable yet to convince myself. 
I am always ready to change my opinion when I am 
convinced that I am wrong in my first opinion, and if 
I can be convinced by the gentleman's eloquence or that 
of any other gentleman who has taken the position he has 
here, I would be glad to change, but I am now of the 
opinion that this amendment should not be made. 

Mr MAYHEW. I desire to call the attention of the 
convention to one fact. I don't believe the committee 



ARTICLE I., SECTION 4 145 

on Revision would have any right to eliminate any of 
those amendments from any one article. I don't believe 
it belongs to them to amend a section or strike out any 
amendment offered by this committee in a section. I 
think they have not the power to do so. While I don't 
desire to discuss this matter any further, after weighing 
the arguments of the gentleman, I am inclined to think 
that this amendment is not correct, that it should not 
appear in this article, that it belongs to the committee 
on Election and Suffrage to provide that and not in 
this part of the constitution. 

The CHAIR. The question is on the amendment of 
the gentleman from Shoshone. (Vote). Motion is lost. 

Mr. CLARK. Mr. President, I move to insert in 
line 9, after the word "denomination," the words "or 
pay tithes," so the section will read, "No person shall 
be required to attend or support any ministry or place 
of worship, religious sect or denomination or pay tithes 
against his consent. (Seconded). 

Mr. SHOUP. I don't understand how any one can 
be compelled to pay any tithes by law. 

Mr. CLARK. Mr. President, the question is a per- 
tinent one. If the gentleman lived in a Mormon settle- 
ment ard the water right was held by the church and he 
did not pay tithes and his water right was cut off, he 
would find a mighty strong compulsion to pay his tithes. 
This guarding clause is to be inserted in the constitu- 
tion of Utah where there are one hundred thousand 
Mormons. It is absolutely necessary to protect these 
men who live in this settlement and would like to be free 
from its control. This provision prohibits the compul- 
sory payment of money to support religious denomina- 
tions. The tithe often is not only to support religious 
denominations, but it is also to support a board of emi- 
gration and a large number of other expenses connected 
with the same. The claim may be made, therefore, that 
it is hardly a religious contribution, and yet it is a con- 
tribution as strictly enforced in certain settlements as 



146 ARTICLE I., SECTION 7 

any other tax is enforced, and in a way that men find 
it very difficult to escape. 

The CHAIR. Are you ready for the question? Will 
the secretary read the amendment? 

SECRETARY reads : Insert after the word "denom- 
ination" in line 9, the words, "or pay tithes." 

MEMBER. How would the section read? 

SECRETARY reads: No person shall be required 
to attend or support any ministry or place of worship, 
religious sect or denomination, or pay tithes against his 
consent. (Vote). Motion carried. 

The CHAIR. The motion is on the adoption of the 
section as amended. Are you ready for the question? 
(Question, question). Carried without a dissenting 
vote. 

SECRETARY reads Section 5 : 

SECTION 5. 

"Sec. 5. The privilege of the writ of habeas corpus 
shall not be suspended, unless in case of rebellion or in- 
vasion, the public safety requires it, and then only in 
such manner as shall be prescribed by law." 

The CHAIR. It is ^moved and seconded that the 
section be adopted. (Carried). 

SECRETARY reads Section 6 : 

SECTION 6. 

"Sec. 6. All persons shall be bailable by sufficient 
sureties, except for capital offenses, where the proof is 
evident or the presumption great. Excessive bail shall 
not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted." 

The CHAIR. It is moved and seconded that the 
section be adopted. (Carried). 

SECRETARY reads Section 7: 

SECTION 7. 

Mr. REID. I offer the following amendment: 
SECRETARY reads: "In Section 7, line 1, insert 
after the word "but," "by consent of the parties." 



ARTICLE I., SECTION 7 147 

Mr. REID. Mr. President, it will read "but by con- 
sent of the parties in civil actions, three-fourths of the 
jury may render a verdict" I recognize the fact, Mr. 
President, that we are disposed to put in innovations. 
We are making departures from some of the old prece- 
dents in one or two instances. I think that parties 
ought not to be compelled to consent to a verdict of 
three-fourths. I take it under the statute that they 
can consent to a majority verdict, a verdict of three- 
fourths, but the object of this amendment is to prevent 
the legislature from enacting a statute which will make 
it compulsory, I know in civil actions, by stipulation, 
you can agree to almost anything. This reads "in civil 
actions, " etc. Now if the legislature follow that up by 
a statute making it compulsory upon the parties to ac- 
cept a verdict of three-fourths, then I am opposed to it. 
I think it ought to be put in there "by consent of the 
parties." They can then provide by statute, if they wish, 
that where parties agree to it, three-fourths of the jury 
may render a verdict. If three-fourths can render a ver- 
dict, why not just have the jury of nine and save the 
expense connected with the other three and let the ver 
diet be unanimous? With a great deal of hesitancy I 
think we ought to depart from the old precedents. If 
parties choose to do so, let them consent, but we have 
tried this jury system a number of years. It has been 
handed down to us through two centuries, and I believe 
about the only innovation that has been made in it, the 
number has been cut down to twelve, whereas it was 
originally twenty-two or twenty-three, and it has proven 
to be one of the best of human systems we can adopt 
and I think we ought to hesitate how we depart from it. 
By inserting these words, parties by consent may do it, 
but it will also prohibit the legislature from making it 
compulsory. This is the object with which the amend- 
ment is offered. 

Mr. SHOUP. Mr. Chairman, I would ask the mover 
of this amendment how that consent is to be expressed. 

Mr. REID, They can consent in open court or by 



148 ARTICLE I., SECTION 7 

stipulation. The legislature can provide the machinery. 
I would strike out the whole, but I think it can be so 
amended so as to reach the same thing. I want to pre- 
vent the legislature from making it compulsory that we 
shall accept a verdict of three-fourths. We can do that 
now under the statute in civil cases. We cannot in crim- 
inal cases, and it is well that the committee put in a 
proviso that you may waive jury trial in certain crim- 
inal cases. But I want to fix the constitution so the legis- 
lature cannot make it compulsory on civil suitors to 
accept a verdict of three-fourths. I will say, sir, in ans- 
wer to the chairman of the committee, that I suggest that 
it leave the machinery for the legislature. They can 
regulate it by any statute, and I say this consent may 
be expressed in open court or by stipulation. 

Mr. CLAGGETT. The amendment offered by the 
gentleman from Nez Perce (Mr. Reid) covers one of the 
most important propositions that this convention will 
ever be called to pass upon, and that is the question of 
the jury system. I take issue entirely with the gentle- 
man when he says he proposes to leave this question to 
the legislature. If the amendment which he has offered 
is adopted, the legislature has no function to perform in 
connection with this matter. No one can waive 
the old common law rule of unanimous verdict except 
the parties to the action themselves, and that 
is a waiver that need never be expected as long 
as the attorney for the plaintiff or defendant, as the case 
may be, considers that he has a bad case to try. It is an 
axiom in the legal profession that whenever you have no 
right, demand a trial by jury, and stand upon a verdict 
of twelve, for the reason that where you have no case, 
you have a chance at least to secure some one or two 
persons to hang the jury. The section which we are 
now considering makes it a part of the organic law of 
the state that the verdict of three-fourths of the jury 
may stand as the verdict of the whole. In other words, 
that nine out of the twelve may bring in a verdict. So 
far as this particular provision is concerned, it is no in- 



ARTICLE L, SECTION 7 149 

novation in this western country. It was put in the 
constitution of Nevada in 1864. * At that time it was 
an innovation, and it was fought with all the influence 
of the legal profession in spite of the absolute necessity 
for the insertion of this provision in the constitution. 
Nevertheless, the necessity for such a provision was so 
patent, so evident, that it was placed there, and adopted 
by the people of the state; and any one who should 
now undertake to say that in civil cases in that state (or 
wherever it has been tried) the verdict should be of the 
entire 12 would be laughed at as being entirely behind 
the times. Since then it has been adopted by the state 
of California 2 as we find it in this section; it has been 
adopted now by the convention in Montana, 3 it is 
incorporated in the proposed constitution of Dakota, 4 
and I may say, generally that ever since the ice was 
once broken with regard to this old abuse of the jury 
system, it has practically been incorporated in the con- 
stitution of every state which has had occasion to call 
a convention, since it was first put in the Nevada con- 
stitution, 

I take this position, Mr. Chairman, and I speak from 
observation and pretty long practice in that regard. 
Whenever a case is tried to a jury, and the jury retires 
to deliberate upon its verdict, it is either one of those 
cases concerning which there is practically no dispute 
and upon which a jury of twelve or a jury of fifty 
would equally and promptly agree, or else it is a case con- 
cerning which there is a decided difference of opinion. And 
I state it to be a fact, and I think every practicing attor- 
ney will bear me out in the statement, that in all cases 
where there is a radical difference of opinion in the jury 
box after retirement, and where notwithstanding those 



1 — Art. 1, Sec. 3. 

2 — Art. 1, Sec. 7, Const. 1879. 

3 — Art. 3, Sec. 23, Const. 1889 (provides two-thirds may ren- 
der a verdict.) 

4 — Art. 6, Sec. 6, Const. 1889, So. Dakota (the legislature may 
provide.) 



150 ARTICLE I., SECTION 7 

differences, a unanimous verdict is finally rendered, the 
verdict of the twelve is less apt to be right than the ver- 
dict of the nine out of the twelve; for the simple reason 
unat wherever there is a controversy of that kind in the 
jury box the verdict is inevitably the result of a com- 
promise which gives neither the plaintiff nor the de- 
fendant what he is entitled to as a matter of law. We 
are here engaged in the work of making a constitution 
which we can recommend to our constituents on account 
of the economy which it will bring to pass in the ad- 
i ministration of our county governments, among other 
things. And yet, in civil cases where large sums of 
money and valuable property are involved, it is almost an 
absolute certainty that you will have from one to two 
jurors upon the jury who have been bought to hang it, on 
the one side or the other; or, if they have not been 
bought, they are influenced by personal or private con- 
siderations of such a character as practically disqualifies 
them to sit as jurors, if the facts had been known at the 
time they were impaneled. The consequence of this is, 
as it was in Nevada in 1864, (when in Storey county 
there were four thousand cases on the calendar, and 
where although they had been litigated by trial by jury 
for five years, they had never succeeded except in a 
single instance in obtaining a verdict in an important 
mining case) namely, hung jury after hung jury, the 
hanging generally being done by one or two men who 
were there for a purpose and that purpose not one which 
the law contemplates or authorizes. And so here in this 
state, if we become a state, you will find that without 
this provision in the constitution making it obligatory, 
our county treasuries will be subject to charge after 
charge of useless and unnecessary trials where the sim- 
ple application of this provision will prevent the whole 
thing and secure that which a subsequent clause of this 
Bill of Rights declares shall be the fundamental right of 
the citizens, a right not only to a fair trial and an im- 
partial one, but a speedy determination of the contro- 
versies which he has occasion to bring into court. I can- 



ARTICLE I., SECTION 7 151 

not conceive how there can be any possibility of dispute 
about or objection to this provision as it stands, with 
regard to civil actions. I propose when this matter is 
disposed of, and before we leave this section, to bring 
up a much more radical proposition than is embraced 
here; that is, to apply the same rule (except substituting 
five-sixths instead of three-fourths) in all criminal ac- 
tions except where the death penalty is imposed by law. 
And I say to this convention now, that you may hunt 
the statute books of the states and territories of this 
Union, and you will find that taken as a body the legis- 
lation of the state and territories embodies more prin- 
ciples of equity and fair dealing and equality as between 
man and man, and between corporation and corpora- 
tion, than can be found in the legislation of any of the 
civilized countries upon the face of the earth outside of 
these United States. The troubles of which the people 
complain are not about legislation; the difficulties that 
arise in the administration of the law do not as a rule 
arise upon your statute books. The total failure of so 
many state and territorial governments to answer the 
purposes for which governments are created, is due not 
to the bad legislation upon your statute books, but to the 
fact that you cannot enforce the laws which you have. 
In other words, they break down in their execution, and 
until you reform the tribunals that administer the law, 
and do away with those abuses which have grown up 
under the changed conditions and circumstances of so- 
ciety and everything of that kind as we find it today, 
you may pile up statute on top of statute until you have 
the finest code of laws in theory that it is possible to 
enact, and still you will have the same old clamor going 
up from the masses of the people as to why its laws 
are not properly administered and properly enforced. 
We must go to the root of the evil. The legislative bod- 
ies are all right; the trouble lies with the judiciary and 
the jury box, and those old matters which time-hon- 
ored tradition has brought down, and which we have 
outlived. There is a demand from all parts of the coun- 



152 ARTICLE I., SECTION 7 

try that these abuses shall be cut off from these ancient 
tribunals, and they should be left free to flourish in 
their old vigor and in all of their old usefulness. 

Mr. HEYBURN. Mr. Chairman, I desire to send 
up a substitute for the amendment offered by the gen- 
tleman from Nez Perce. 

SECRETARY reads substitute for the amendment of 
Mr. Reid: To amend Section 7 by striking out all after 
the word "inviolate" in the first line. 

Mr. REID. I will accept the substitute in place of 
mine. It effects the same purpose. 

CHAIRMAN. So that the section will read how, Mr. 
Secretary ? 

SECRETARY. The section will then read "Section 
7. The right of trial by jury shall remain inviolate." 

Mr. REID. I withdraw my amendment and accept 
the gentleman's substitute; it says the same thing. 

Mr. HEYBURN. .Mr. Chairman, the object in of- 
fering this amendment is to strike out that which, 
with the exception that the gentleman (Mr. Claggett) 
has specified, of Nevada and California, and perhaps 
some other jurisdictions of which I am not advised, is 
an innovation upon the jury system of this country. Mr. 
Chairman, I cannot agree with the gentleman in regard 
to the wisdom of changing entirely the system that is 
as old as government itself, that no man shall be de- 
prived of his rights, of his liberty or his life, except by 
a unanimous verdict of a jury of his fellow citizens who 
have no interest other than to see that justice is done 
him. This principle has been deemed so important that 
at one time the demand that man should be protected 
by right of trial by jury revolutionized the civilized 
world. The question is in a manner sprung upon this 
convention this morning, and I suppose that other gen- 
tlemen like myself have scarcely had time to collect their 
thoughts in fit form for expression upon this matter. 
It is only since I entered this chamber that I knew of 
the existence of such a provision or such a report; that 
was not the fault of the convention, but my own, having 



ARTICLE I., SECTION 7 153 

been absent; but I cannot see this old institution of 
trial by jury swept away without entering my solemn 
protest against it. It is the strong arm of the law that 
stands between the weak and the strong, between rich and 
pooi', between oppressed and oppressor. Recognizing 
aie principles that the gentleman from Shoshone has 
invoked, of economy and speedy justice, it may result in 
economy and speedy injustice to the man who is not 
able to buy a jury, if juries are ever bought. I do 
not believe myself that juries are a merchantable arti- 
cle; I believe that there is a principle, an element of 
safety in the conservative American jury that is just 
as reliable as that which we vest in the legislature or 
in the judiciary. I believe that juries can be selected from 
the body of the whole community that are just as trust- 
worthy as the judges that sit upon the bench, or the 
gentlemen who sit in the legislative hall and make the 
laws. I agree with the gentleman that the fault is more 
in the administration of the laws than in the making of 
them; that is true in a limited sense, but admitting the 
truth of it, it is still not necessary for us to say that 
less than a unanimous verdict shall deprive any man of 
either his liberty or his personal rights. We cannot 
afford in the interest of economy nor in the interest of 
speedy justice — or of speedy trial, more properly speak- 
ing — to lessen by one hair's breadth the safeguard, the 
assurance every man has that his property or his rights 
will not be taken away from him, unless it is clear, be- 
yond a reasonable doubt that they do not belong to 
him, and that that reasonable doubt is to be determined 
by a unanimous verdict. 

I therefore move, Mr. Chairman, that all of that 
section after the word "inviolate" which provides that 
less than a unanimous verdict of a jury shall be received 
in any case, either civil or criminal, be stricken out. 

Mr. CLAGGETT. I would like to be indulged in an- 
other word, Mr. Chairman. When this discussion first 
opened, it was with an amendment offered by the gen- 
tleman from Nez Perce (Mr. Reid), under the specious 



154 ARTICLE I., SECTION 7 

claim that the whole matter was to be left to the legis- 
lature. We now have a substitute for the amendment, 
which has been offered by the gentleman from Shoshone, 
Mr. Heyburn, namely that the question of unanimity of 
the verdict of the jury in all cases shall be 
preserved as a matter of constitutional law, which 
the legislature itself cannot hereafter change. 
That is the proposition that is now before 
this convention. I have heard, Mr. Chairman, for 
years, all of that same talk about trial by jury. I have 
seen all of these same old, ancient stick-in- 
the-bark legal propositions and sacrifices of sub- 
stantial justice to mere legal technicality. I have 
seen the members of the legal profession, who 
ought to be the leaders in all matters of practical re- 
form, not only in the creation, but in the execution of 
the laws, fighting step by step and stage by stage, every 
effort to change or modify any one of these ancient tra- 
ditions, hoary with time, it is true, but which still, under 
changed conditions, now defeat the ends of justice, until 
at last there has come to be a widespread conviction 
throughout the United States that the legal profession 
itself, very largely by its failure to meet these changed 
conditions, constitutes one of the things that needs the 
greatest reformation. (Applause). I know very well 
that in the argument I am making in behalf of good 
government and substantial justice, that we can rely but 
little upon my brethren of the profession upon this floor ; 
not because they do not desire equally with the rest to 
do that which will be most beneficial to the community, 
but because they are so completely tied down by preced- 
ent, that they are incapable of rising above it as a gen- 
eral proposition. When I am thus speaking, I speak 
generally and not particularly, and consequently we 
need not expect much, so far as this matter is concerned, 
from the legal profession. We have had this matter up 
in the judiciary committee day after day; it has been in 
session five or six days, and has prevented the action of 



ARTICLE I., SECTION 7 155 

that committee to a considerable extent from being 
ready for report. 

Now let us go back. What was trial by petit jury 
at common law? I am not now talking about the com- 
mon law as it was perverted after the Norman conquest; 
I am going back to the very roots of the common law as 
it was established by the ancient customs of our Saxon 
forefathers, and before the principles and ideas of the 
law which were brought in by the Norman Conquest had 
perverted to any degree whatever the English jurispru- 
dence. What was the old common law practice with regard 
to trial by jury? Not only was it true with reference to 
the grand jury, but it was also the law with reference 
to the petit jury, that the jury should consist of twenty- 
three persons drawn from the vicinage and consisting 
originally of the witnesses in the case, supplemented 
where necessary by additional members, and that a ver- 
dict of the majority was the verdict of the jury. That 
is the common law as it was known to the 
customs of our Saxon forefathers; and this 
thing of a unanimous verdict is itself a per- 
version of the old common law and came historically 
around in the following way. As time went on, it was 
found that the cases multiplied in the court so that in- 
stead of having a case now and then, the courts were 
constantly in session with large calendars and multiplied 
controversies. It was found that a jury of twenty-three 
was too large and too expensive and it was cut down to 
sixteen, and afterwards to twelve, as a mere matter of 
economy. In the meantime the phrase, "It takes twelve 
men to make a verdict," in other words, that it takes a 
majority to make a verdict, had gone into the law books, 
had been announced time and time again by judicial ut- 
terances from the bench. So that when the jury was fin- 
ally cut down to twelve we had a complete perversion and 
prostitution of the principles of the old common law, by 
the substitution of a unanimous verdict for the verdict 
of a majority. These old ancestors of ours, Mr. Chair- 
man, no matter what their barbarisms may have been, 



156 ARTICLE I., SECTION 7 

laid down the axiom by which today your courts are 
administered wherever the common law of England pre- 
vails in Great Britain, in the United States, or in the 
English-speaking colonies of Great Britain throughout 
the world. And every year that I have lived, from the 
time I became acquainted with these customs which we 
now call our laws, I have been more and more pro- 
foundly impressed with the wisdom of those old savages, 
if you choose to call them so, for we have scarcely made 
a change in those customs; and the changes we have 
made have largely operated to defeat public justice. 

We are seeking here, at least I am, for one, to re- 
cover back to the people the real merits of a trial by 
jury. No one advocates or upholds that institution more 
strongly than myself. But we have certain abuses con- 
nected with it, one of which is the unanimous verdict 
which time and experience has shown to operate to 
defeat the ends of justice. I propose to eliminate that 
which tends to defeat the ends of justice and leave the 
trial by jury not as it was, under the old original com- 
mon law, but something like an approximation to it, by 
abolishing this absurdity which does not prevail any- 
where else, or in any portion of our government, of re- 
quiring twelve men to agree unanimously before the liti- 
gant can get justice in the courts. Do you apply it 
upon the bench? You have five judges, and three render 
the judgment. Do you apply it in your boards of ar- 
bitrators? You may have one or more, but the laws 
always provide that the majority governs. Do you 
apply it in the gravest questions of legislation, either in 
committee of the whole or convention? No, the majority 
governs. Do you apply it in the business affairs of your 
life? Is it applied anywhere except in this question of 
trial by jury? Does not the common sense of the busi- 
ness community, does not the common sense of the pub- 
lic, does not the common sense of every individual man 
reject it, as applied to any and every other consideration 
or matter of business which arises, which requires set- 
tlement or adjudication, or even agreement in the mat- 



ARTICLE I., SECTION 7 157 

ter of carrying on a business? Do you apply it in the 
case, even, of your large corporations? By no manner 
of means. What kind of a corporation would it be if it 
took a unanimous vote of all the stock to agree to every 
resolution that might be offered in a meeting of stock- 
holders or a board of directors? What kind of a propo- 
sition would it be to carry on business where there were 
a number of men in the firm or association of individ- 
uals if it required the unanimous consent of all before 
anything could be done? Does not every member upon 
the floor of this convention plainly see that the applica- 
tion of any such rule as that to any of the business af- 
fairs of life would operate as a complete paralysis of the 
ends for which business operations are transacted or 
projected? And if it is true with regard to all of our 
business relations or is true with regard to the determin- 
ations of our courts, if it is true in regard to the awards 
of our arbitrators, if it is true with regard to the elect- 
ions of those who shall rule over us, where the majority 
prevails, and if the substitution of any other rule in all 
these varied relations of life and political freedom, would 
operate as a paralysis of the functions which are therein 
performed, then, Mr. Chairman, I ask the members of 
this convention, does not this fact sufficiently explain 
how it is that the courts of justice are so frequently 
paralyzed in the administration of the law? You have 
inserted in the body of your law that which practically 
destroys the vitality of its administration. 

How do you find it abroad? It is only two years ago 
that in the large city of Cincinnati, containing three or 
four hundred thousand people, there was a riot in which 
many men were killed and hundreds were wounded, 
where the people rose up in arms and undertook to sack 
t v e jail, and hang the prisoners there confined. Why? 
Because under the constitution of the state of Ohio re- 
quiring this unanimous jury verdict, public justice had 
become a mockery, and by influencing one man to hang 
the jury, it had become utterly impossible to secure the 
ends of justice, and the ends for which all governments 



158 ARTICLE L, SECTION 7 

are originally created, and at great expense to the tax- 
payers are maintained. 

I do hope, Mr. Chairman, that this convention will 
do one of two things: That it will either adopt this 
provision as it is reported by the committee on the Bill 
of Rights, or, if this is considered a new question, and 
the members desire to study the matter more carefully 
than this hasty examination permits, let us pass the 
section for the present and consider it some other time; 
but, in all events, let us take such action as calm delib- 
eration requires to be taken. 

Mr. REID. It is with diffidence, Mr. President, that 
I talk in the presence of these Hannibals, old soldiers 
of the law, but I have learned in the affairs of life and 
government, in the short experience I have had, that 
the conservative course is always the safest; and as the 
gentleman states, this is an innovation which we ought 
to approach carefully, thoughtfully, considerately; we 
should not hurry through it; we ought to take time for 
deliberation. As the gentleman has stated, this question 
has been before the judiciary committee, but he should 
have gone further and stated that it was there rejected 
by that committee after full discussion. Now, Mr. 
Chairman, in taking up this Bill of Rights and reading 
it through, you will find it contains all of those old safe- 
guards, all those old fundamental principles which con- 
stitute the ground-work of our government in the west- 
ern empire, and upon which all these great states have 
been built up in the eastern part of our Union, have 
flourished and grown and become mighty and strong 
and made us the most powerful nation on the earth. 
Every one of these principles of government which have 
been enunciated here, are the inherent right of the peo- 
ple to have political power, the state shall be an in- 
separable part of the union — a question which was sealed 
by blood, that religious liberty and conscience shall al- 
ways be secured, and habeas corpus shall never be sus- 
pended, that no excessive fines, unusual punishments nor 
bail shall be required, and right along, constituting one 



ARTICLE I, SECTION 7 159 

of the bright jewels in this constitution is that the right 
of trial by jury shall never be waived, a right which 
back in the ages was wrung from oppressors and 
tyrants. It is true, it has the sanction of time; it does 
come down hoary with age ; but it comes down also hoary 
with the protecting of the people and their rights. 

My distinguished friend argues that there is an an- 
alogy between majorities in political parties and in the 
ordinary affairs of life, and as between jurors. Why 
not carry his analogy further and apply it to all crim- 
inal cases, which he does not propose to do? Why apply 
it only to misdemeanors, why not go further and say 
that the man who is accused of a felony shall be con- 
victed by a majority verdict, or three-fourths? That is 
not proposed. Why not? Because he is not willing that 
this humane doctrine which has become part of the 
jurisprudence of every civilized country — the doctrine of 
a reasonable doubt, that any one in his conscience can 
have, before he convicts a fellow-being of a crime, that 
the jury shall give heed to that doubt and return a ver- 
dict of mistrial or disagreement — shall be annulled. 
But why not apply the gentleman's argument to that? 
If your right of liberty, if your person is sacred and in- 
violate by a jury of twelve men, when your home and 
the title to your home and your water rights and mines 
come into litigation, why should not twelve men just as 
well say that you shall be deprived of your property 
rights as of your liberty? 

Now, gentlemen, we are laying the foundation of a 
great state. We have made one innovation which we are 
all apprehensive about; I mean this question with re- 
gard to polygamy and bigamy. So far as that is con- 
cerned, we all unite on that proposition. And why do 
we make it? Because we find an extraordinary con- 
dition of things in our new state, and we are determined 
to put it down. We are going carefully and as far as 
we can go without jeopardizing the adoption of our con- 



160 ARTICLE I, SECTION 7 

stitution by congress, to enable us to get rid of this evil, 
and we are going to do it. Gentlemen, let us not make 
any more innovations. 

My friend said — what I was sorry to hear him say — 
that perhaps our honorable profession needs reformation. 
The people of Idaho do not think so; out of this body 
representing Idaho, I am proud to say that nearly one- 
half are lawyers. In naming the twenty-five committees 
which my friend (Mr. Claggett) formed here, I am 
glad to say he did not carry out his theory, because 
such was his unbounded confidence in his brother law- 
yers that at the head of those 25 committees he put six- 
teen lawyers. Furthermore, I say that in no profession, 
whatever it may be or wherever you may find it, consid- 
ering the number of important and delicate trusts com- 
mitted to its care, are there fewer breaches of trust, 
in none are there more loyal men. I do not recognize 
that the profession needs reformation so much, but I do 
assert that whenever it sees an innovation, whenever it 
sees the rights of the people menaced, those who have 
studied the law and precedents and from experience 
found out what protects the rights of clients and people, 
have always been first to battle back any innovation that 
has encroached upon the rights of the people. And as an 
evidence of this, I appeal to the convention that framed 
the Constitution of the United States and that framed 
the constitution of every state in this Union. Where law- 
yers were in a majority, they have adopted constitutions 
that have made this country and these states great and 
glorious. I appeal to this convention to be careful in 
adopting innovations. We have a great empire here, a 
glorious territory; we have great resources of hidden 
wealth, that the wildest imagination never dreamed of. 
We have the great principles of government under which 
the eastern states have prospered and profited. Let us 
follow experience. Hereafter, when we get to be a 
great and glorious state, such as California is, or such 
as Nevada is not, we may adopt these innovations; but 
when we have offered to you a conservative, tried, 
known, safe and secure way, and. on the other hand, an 



ARTICLE I, SECTION 7 161 

experiment, when you are building a new state, I take 
it that it is the part of a conservative man to adopt that 
which is known to be safe and secure in the past. That 
is "the reason I support the substitute. Mr. friend, (Mr. 
Claggett) says we have been a little specious in regard 
to this matter ; that I first wanted to leave it to the legis- 
lature. I suggested that for this reason: I thought 
from the report of the committee that perhaps there was 
such a sentiment here as would be ready to take this 
new departure, and by thus offering a compromise, it 
might be accepted; but in the first instance I was pre- 
pared to go as far as my friend from Shoshone (MR. 
Heyburn), and say that trial by jury, which has been 
transmitted to us through two hundred years, shall re- 
main sacred and inviolate. Hence, I support the sub- 
stitute. 

Mr. SHOUP. I move the convention take a recess 
until one o'clock. 

Mr. MAYHEW. I move an amendment to that, that 
the committee now rise and report progress and ask 
leave to sit again. (Seconded). 

Motion carried. 

CONVENTION IN SESSION — PRESIDENT CLAGGETT IN THE 

CHAIR. 

Mr. SHOUP. I move we take a recess until two 
o'clock. 

The CHAIR. What will you do with the report of 
the committee of the Whole? It is not in order to make 
a motion until this action is disposed of. 

MAYHEW. The chair might ask the committee to 
report. 

The CHAIR. The motion was that the committee 
rise, report progress and ask leave to sit again. 

Mr. MORGAN. Mr. President, your committee of 
the Whole have had under advisement the report of the 
committee on Preamble and Bill of Rights, and report 
progress and ask leave to sit again. 

The CHAIR. All those in favor of adopting the 



162 CHANGES IN COMMITTEES 

report of the committee of the Whole, say aye. (Vote). 
The report is adopted. 

Mr. MAYHEW. Mr. President, I do not desire in 
this motion to cut off this debate upon this question that 
is being considered in committee of the whole this morn- 
ing at all, but I desire to make a motion that this con- 
vention adjourn until 8:00 o'clock this evening. I be- 
iieve we have to meet this evening for the purpose of 
hearing some lecture upon some subject. I simply de- 
sire to state, not to discuss the question, that the com- 
mittee on Judiciary and other committees, desire to have 
time to consider the questions before them and that they 
may report at an early hour to this convention. If we 
go on considering these matters, we will never reach 
the end. (Seconded). 

The CHAIR. It is moved and seconded that this 
convention adjourn until 8:00 o'clock this evening. Car- 
ried. 

EVENING SESSION. 

The CHAIR. Gentlemen of the convention, you will 
please come to order. The convention adjourned until 
this hour for the purpose of listening to Mrs. Duniway in 
support of her petition with reference to female or wo- 
man's suffrage. As the lady is not here, by general con- 
sent, inasmuch as I understand there are several stand- 
ing committees ready to report, we will now receive the 
reports of standing committees in order that the manu- 
scripts may go to the printer as soon as possible. 

COMMITTEE REPORT — PUBLIC INDEBTEDNESS AND SUBSI- 
DIES. 

Mr. HAGAN. The committee on Public Indebted- 
ness and Subsidies desires to make the following re- 
port. Albert Hagan, Chairman. 

(Report read by secretary and ordered to lay upon 
the table to be printed). 

CHANGES IN COMMITTEES. 

The CHAIR. Any further reports of standing com- 



CHANGES IN COMMITTEES 163 

mittees? I will call attention to the fact that Mr. Stull 
who was chairman of the committee on Manufactures 
and Irrigation will be compelled to remain away for 
some time and he requests that his colleague, Mr. Cav- 
anah from Elmore county, be substituted in his place as 
chairman of that committee. Is there any objection to 
the granting of that request. If there is none, it will be 
so ordered. 

My attention also has been called to the fact that a 
representative on the committee on Apportionment from 
Kootenai county, Mr. Hendryx, has not yet reported to 
the convention, which leaves Kootenai county without 
a representative upon that committee and under the rule 
which provides that one committeeman should be ap- 
pointed from each county, the number has not as yet been 
filled by the appearance of all the delegates so appointed, 
and Mr. Melder, who represents that county here, re- 
quests to be placed upon that committee in the absence 
of Mr. Hendryx. Is there any objection? If not, it will 
be so ordered, and Mr. Melder will act as a member of 
that committee. 

Mr. REID. Mr. President, I move that Mr. Cavanah 
be placed on the committee on Legislative Apportionment 
in the place of Mr. Stull for the county of Elmore, and 
in the same motion, I will move that Mr. Hagan, the 
gentleman from Kootenai, be placed on the Judiciary 
committee in place of Mr. Stull. (Seconded). 

The CHAIR. It has been moved and seconded that 
Mr. Cavanah be placed on the committee on Legislative 
Apportionment in the place of Mr. Stull, and that Mr. 
Hagan be placed upon the committee on Judiciary. (Car- 
ried.) 

The CHAIR. Gentlemen of the convention, the con- 
vention this morning took a recess until this hour for 
the purpose of listening to Mrs. Duniway in support of 
the petition which she has been pleased to present to 
this convention in reference to the subject of woman's 
suffrage. The time has now arrived and it gives the 



164 ADDRESS OF MRS. DUNIWAY 

chair great pleasure to introduce to you the lady speaker 
in this behalf. 

ADDRESS OF MRS. DUNIWAY. 

Mrs. DUNIWAY. 

Mr. President and Gentlemen of this convention: 

It affords me great pleasure to accept the honor with which 
you have kindly consented to endow me on this occasion; and I 
beg you to take notice that in the .controversies that arise among 
men concerning great public affairs, the women seem destined 
not to be left much behind in the race as their struggles go on- 
ward and upward toward liberty. And although we may and do 
differ very much as women, sometimes, as to the methods and 
aims of public work, yet in a multitude of counsellors there is 
wisdom. The women are learning, although they may criticise 
each other's aims and purposes, to be tolerant of each other, which 
we were not in the years gone by before we had tasted even in 
anticipation of the sweet luxury of liberty. 

I come before you tonight to consider two propositions, or, 
rather, to place before you two alternatives, either one of which 
I believe you, in your judgment, will consider carefully, and one 
of which I am not without hope that you will adopt. Which one, 
of course, will be left to your wisdom, your magnanimity and 
your chivalry to determine. Just as in the infancy of the gov- 
ernment of the United States, the people who lived beyond the 
Rocky Mountains and beyond the valley of the Mississippi formed 
newer and better conceptions of the fundamental principles of 
liberty under the plastic conditions of their then new environment 
than had even been dreamed of by their ancestors, so in the pro- 
posed incoming states, in which I have the proud honor to claim 
a permanent interest, being a resident of Idaho, the people of the 
new generation are forming yet broader conceptions of the glor- 
ious heritage in store for them and their children than their 
ancestors ever anticipated. I realize as I stand in this honorable 
presence that we, the people of Idaho, are making history, for 
although the class I represent is not otherwise represented in this 
honorable body, the fact that you gentlemen have now for the 
second time convened yourselves to give woman a hearing is 
proof that the world is moving in the right direction. 

Without taking up the time of this body in rehearsing facts 
of history with which it is considered you are all acquainted, I 
will at once take up the subject which your chivalry has per- 
mitted us to consider, namely, the fundamental principles of 
liberty upon which the government in these United States is 
professedly founded. The fact that governments derive their 
just powers from the consent of the governed, is not longer dis- 



ADDRESS OF MRS. DUNIWAY 165 

puted by any set of lawmakers, nor is its logical sequence dis- 
puted, that taxation and representation are co-existent factors in 
all just governments. 

You, gentlemen, have already occupied a fortnight in conven- 
tion assembled, combining your wisdom, erudition, eloquence and 
logic in the incubation of a state constitution to be presented to 
your electors — no woman's unless by your permission — in the 
forthcoming month of October. So far as you have yet gone in 
the completion of such parts of your work as have come under 
the observation of lonely stock-ranch cabins like ours in the Lost 
River wilderness, it has seemed to most of us that you have legis- 
lated wisely and well. We cordially approve the public spirit you 
have manifested in considering the just claims of the executive 
and judiciary as well as the legislative departments of a state 
government to such constitutional protection, as well as such con- 
stitutional restriction as shall best insure the proper administra- 
tion of public and private affairs among men. 

We also cordially and heartily approve of your manifest de- 
termination to permit no alien or theocratic power to arise among 
us to wield our ballots and control our offices while bearing 
allegience to a dynasty of priests. And although there is a 
diversity of opinion upon some questions which women have sought 
to place before you, to-wit, the trite one of prohibition, for in- 
stance, to which less than two per cent of the women of the 
territory or of the nation adhere, there is a remarkable unanimity 
among us concerning our own enfranchisement. Women, like 
men, are rapidly outgrowing the idea that prohibition is the re- 
formatory measure they a few years ago considered it. When 
first the idea was placed before them by press and pulpit, large 
numbers of them grasped at it as a sort of a providential compro- 
mise between their own growing and struggling mentality and 
their desire to do something which all men might praise and pet 
them for attempting. They soon discovered also that as an ally 
of the church, they had not only found an avenue to fame and 
honor, but to emolument also; and say what you will, gentlemen, 
there are few men and fewer women who can forego financial 
considerations altogether, as you will demonstrate before you are 
through with the financial problems with which you will be called 
upon to wrestle here. These facts and more especially the last 
named, so stimulated woman's long-repressed and naturally emo- 
tional sensations that it was not difficult for political cranks, the 
one-idea men, who had been kicked out of the old parties, to secure 
their catspaw services in raking chestnuts for themselves from 
the fires of political controversy. 

It was and is the easiest thing on earth to make a prohibition 
speech. It is so easy to depict the ways of intemperance, the 
iniquities of the dramshop and the horrors of the drunkard's 



166 ADDRESS OF MRS. DUNIWAY 

home. We have heard it all our lives, more or less, through the 
oratory of the John B. Goughs and Francis Murphys, who from 
time to time have visited us in rural communities, and the heart 
of woman being emotional by nature, it is not to be wondered at 
that the very first avenue or opening that seemed to come to 
them would find women ready and willing to enter therein, who 
are conscientious in what they do, although in the judgment of 
those of us who have had a broader and more practical concep- 
tion of life through out struggles in the far, free West, it has 
seemed sometimes that they have looked as through a glass 
darkly. 

Money is the motive power that moves the world. It is more 
potent than religion and more powerful even than love. No or- 
ganization can long exist without it. It is as potent a factor in 
the church as with its adversary, the saloon and is not lost sight 
of by even that honorable and excellent body, the Woman's 
Christian Temperance Union, or its latter ally, the Woman's 
Suffrage Association. I am not complaining of these things, but 
simply stating facts that you may see that women are not blind 
to the financial situation. Hitherto their opportunities have been 
sadly circumscribed in money matters, as they are now except in 
certain directions. And . it is not to be wondered at that they 
have sought the first avenues that opened to them for making 
money in which they may work and travel and receive pay and 
the plaudits of men, while at the same time comforting their con- 
sciences by the feeling that they are serving God and doing good. 
Multitudes of the great rank and file of prohibition women are 
not to be included in this category, no more than are the mul- 
titudes of the great rank and file of women in the church and in 
the home who have given aid and comfort to whatsoever means 
might open to them to work in their quiet, humble way for the 
enfranchisement of women. But it is the leaders of whom I 
speak, and I beg you, gentlemen, to remember that in pursuing 
this hobby and never losing sight of its emoluments, they are only 
following the example of men engaged in the same business. So I 
beg you, gentlemen, that you will cease the harsh criticisms that I 
sometimes hear of women who are engaged in this work, because 
you claim that they are after the money. Show me a man who is 
not after it, but who thinks he can live without it, and I will 
show you an inmate of the poorhouse or a pensioner. Be patient 
with them. They have plenty of material in sight in every town 
they visit upon which to expend their eloquence, nor can you ex- 
pect they will cease to harp upon that string as long as they can 
make it profitable. 

Of the philosophy of prohibition, I need say but little. Every 
thinking man or woman who analyses the subject closely reaches 
one conclusion, and this is, coercion or any species of arbitrary 



ADDRESS OF MRS. DUNIWAY 167 

law never yet restrained any man in his vices so long as he was 
not constrained in his liberty. Give a man who desires to indulge 
a vice the liberty of locomotion, and depend upon it, he will find 
the opportunity to indulge that vice. Openly, if he can, but 
secretly if he must. That is human nature, and men have for so 
many generations been accustomed to oppose the arbitrary laws of 
women, that it is little wonder that they have risen up with re- 
markable unanimity (only now and then a man excepted and he a 
leader in the prohibition ranks) , to oppose with vehemence or 
ridicule, or whatever else may seem to him most convenient, the 
growing desire upon the part of women to deposit the "white- 
winged messenger" of peace on earth and good will to all the 
people in the ballot box. The stale argument that compares horse- 
stealing, against which we have prohibitory laws by common and 
undisputed consent, with liquor selling, about which there are 
many differences of opinion, is most unfair, since there are no 
laws against horse-selling — provided the purchaser is ready with 
the cash, and the horse offered for sale is all its owner claims for 
it. In like manner the comparison about the prohibition of murder 
is unfair, since the sale of guns, knives and ammunition is not 
prohibited, except under certain conditions, nor are humanity and 
horses forbidden to exist because some men are murdered and 
many horses are stolen. 

Of the evils of intemperance and the sufferings of its victims. 
I need not speak, since I could not hope to teach or to edify you on 
these points. If I were the Omnipotent Power, and I say it 
reverently, I should not hesitate with my finite conception of 
things, to prohibit everything that is evil. I would prohibit dis- 
ease, poverty, slander, arson, murder, vice in any and every one 
of its various forms wherever it raised its hydra head. I would 
with the mandate of Omnipotence, provided I possessed it, with 
my finite conception of things, at once strike it down. But since 
I cannot do this, and God plainly teaches us that he won't, I 
have no desire to do so, nor has the very large majority of 
American women whom I have the honor to represent, nor have 
they the remotest wish to run atilt against that Omnipotent power. 
Clearly the prohibition movement is dying out. I am sorry, but 
truth and candor compels me to tell these truths in the face and 
eyes of dear and earnest women who so desire the contrary; but 
I am here with your permission, gentlemen of the constitutional 
convention, to tell the truth as I understand it, feeling satisfied 
that as the years go on the proof will not be wanting that will 
compel all women to confess it. Need I instance Michigan, 
Massachusetts, Vermont, Oregon, Rhode Island, Pennsylvania 
and Connecticut, where prohibition has lately met with over- 
whelming defeat, in support of this statement. Women as well 
as men have lost faith in it by the tens of thousands within the 



168 ADDRESS OF MRS. DUNIWAY 

past few years, hence these defeats. Many women in Washington 
territory who had never lifted voice or finger to secure the ballot 
before it came to them, but who unwisely yielded to the counsels 
of women from the east who sought them out, on a handsome 
salary, to induce them to use their newly found ballots as cats- 
paws in the hands of idealists and cranks, have discovered under 
the humiliation of the great defeat that has deprived them tem- 
porarily of the ballots they had ' but just learned to prize, that 
what women need for the purification of the race is not an arbi- 
trary law for the coercion of men but liberty for themselves, 
that they may rise above the conditions of subjugation against 
which their forefathers rebelled, and under which they are no> 
so often compelled to become the mothers of a progeny of 
drunkards. 

In Wyoming where the women have been voters long enough 
to learn wisdom before the prohibition rage became the fashion, 
better counsels prevailed and no such innovation has been intro- 
duced to act as a boomerang against their ballots. Consequently 
when the incoming state of Wyoming wheels into line with her 
constitution, unless you, gentlemen of the convention, shall have 
proven yourselves wondrous wise and grandly chivalrous and 
gloriously patriotic, the territory of Wyoming bids fair to be the 
only one in which the full, free voice of the people shall be heard 
upon its constitution. 

I am making no fight against prohibition per se, since 1 
realize that everybody has a right to ride a pet hobby even when 
riding it to its death, provided, of course, that he does not over- 
ride the principles of liberty with his hobbyhorse. But I wish I 
might convince every man in this convention that most women 
realize, and as keenly as any of you do, the fact that every 
woman who sits behind the prison bars of her present political 
environment, lifting her manacled, ballotless hands to men and 
saying, "Give us the ballot and we will put down your whiskey," 
not only tells us a self-evident untruth, (since all the force of 
arms to say naught of ballots could never do it unless men should 
voluntarily put it down themselves) but every such woman merely 
offers the strongest possible inducement to most men to say, "Very 
well; we will see that you do not get the ballot at all if you are 
going to use it when you get it as a whip." That is the way 
they talk, and while I am not speaking now of what ought to be, 
I am here to tell you as nearly as I can, what is. 

What the women ask, gentlemen of the convention, the great 
majority of the women of the territories are asking for, I mean, 
women who have no time to spend in running to ice cream fes- 
tivals to induce men to fill their stomachs with an indigestible 
compound for a consideration, that sends them to the dramshop 
for an antidote; women who look upon the practical side of every 



ADDRESS OF MRS. DUNIWAY 169 

subject and are not sent out as the paid representatives of any 
set of men or any political party, is that you will engraft into 
the fundamental law of Idaho a clause in your chapter on 
suffrage and elections providing that, other rights and qualifica- 
tions being equal, (except the right to bear arms which nature 
accords to man, and the still more perilous right to bear armor- 
bearers, which the same inexorable power assigns to woman) 
there shall be no restriction placed upon the suffrage on account 
of sex. Do this wise and patriotic thing, gentlemen of the con- 
vention, and your constitution will be adopted by spontaneous 
combustion. You will put power in the hands of your wives and 
mothers with which they can level blows of irresistible strength 
at the demon of polygamy that now menaces their daughters in 
many sections of the southern and eastern portions of this rising 
commonwealth. 

While I can and do point to Wyoming where the women have 
voted for the past two decades, in proof that women's ballots 
will not bring prohibition and also to Washington, where for 
three and a half years a majority of the women refused to use 
the ballot as a whip to coerce men into leading strings as 
though they were little children, I do say without prospect of 
contradiction that women are quite as much opposed to drunken- 
ness in husbands as men are opposed to drunkenness in wives. And 
when women are everywhere free and equal with men before the 
law, they will cease to rear children of such weak moral fibre that 
they are unable to resist temptation. Grant us the right of 
suffrage, gentlemen, and we will not only pledge to you our 
lives, our fortunes and our sacred honor in aiding you to adopt 
this constitution, but we will when it is adopted, feel so proud of 
you and of ourselves that we will proclaim the glad tidings of 
our freedom among all the cities and countries of the east and by 
so doing, turn the tide of immigration into Idaho, just as we 
exultantly directed it to Washington during the period of three 
and a half years when we could do so .consistently, because Wash- 
ington was then "the land of the free and the home of the brave." 

But, gentlemen, I well know there is no other dogma that 
dies so hard as any species of tyranny. I know that many of 
you, if married, may delude yourselves with the idea that you are 
"heads of the family." Your wives know better, but you do not. 
I know how persistently your wives — kind diplomats — persuade 
you to believe that you are the supreme power in the household. 
Your vanity and self-love are fed upon this sophistry and I do 
not wonder that you like it. Perhaps if the tables had been 
turned these six thousand years, we would have been equally 
blind in the same direction. You, like us, are very human and 
we, like you, are by no means perfect. We know every one of 
your threadbare arguments against our liberties by heart. You 



170 ADDRESS OF MRS. DUNIWAY 

say we must fight if we vote, forgetting or pretending to forget 
that life's hardest battles everywhere are fought by the mothers 
of men in giving existence to the race. You say we do not wish 
to vote, when all the opportunities we have ever had to vote have 
been as freely utilized in that direction as your own. You say if 
we wish the ballot, let us ask for it, when we have been asking 
for it for lo, these forty years. 

You say bad women will vote, when you well know that bad 
men vote and claim the ballot for their protection, while you do 
not say them nay. You say we must sit on juries if we vote 
when ever and anon a woman is to be tried. May we not, gen- 
tlemen, look forward to the day when woman may be tried by a 
jury of her peers? 

I do not mean that all, or nearly all, of you will say these hard, 
illogical things. Quite a number of you I know to be in favor 
of woman's full and free enfranchisement, and I sincerely hope 
that all of you will be so convinced of the justice and expediency 
of our plea that you will not hesitate to make your names im- 
mortal as the first body of constitution writers under the sun 
which has ever dared to be wholly just with the mothers of the 
race. But, O gentlemen, if in the extreme of caution that induces 
other men to uphold their own prejudices in opposition to the 
aspirations of women, you do not dare to grant us the free boon 
of full enfranchisement, we have another plan to lay before you 
which we have been hoping will not fail to meet your unqualified 
approval. 

Remember that we ask you, appealing to your chivalry, your 
sense of justice and patriotism, appealing to your spirit of lib- 
erty and honor, to grant us as a part of the fundamental law you 
are making our own free, unquestioned right to vote; but if you 
will not grant this request, then we pray you as a compromise 
with your consciences and with us to put a clause in your chapter 
on suffrage and elections providing that the legislature may at 
any session pass a bill extending the elective franchise to women 
on equal terms with men. Surely you will not compel your wives 
and mothers under a constitutional law of the state of Idaho, 
which you have denied us the right to any voice in framing or 
adopting; surely you will not compel us to go before the ignorant 
and prejudiced voting classes of men with our hands on our 
mouths and our mouths in the dust, beseeching half fledged boys 
who have just attained their majority and have not ceased 
struggling with weak mustaches, or praying foreign-born voters 
who cannot speak our language or comprehend the first principles 
of our free institutions, — surely you will not so humiliate us and 
so outrage our sense of justice as to remand us to these powers 
only to be sent away when we ask for liberty, with a brutal and 
derisive "No," as has been so often done in older states when 



ADDRESS OF MRS. DUNIWAY 171 

we have asked their voters to amend their constitutions in our 
behalf. Surely you will not be thus unpatriotic, thus unchival- 
rous, gentlemen. You have opportunity to so frame your con- 
stitution in the very inception of your government that your 
picked men of the legislature may be allowed to sit in final 
judgment upon our plea for ballots. 

The eyes of the world are upon these territories. The free- 
dom-loving spirit of the west has long passed into a proverb. 
Shall we, the women of this borderland who have shared alike 
your trials and your triumphs, shall we not be permitted to go 
up to Washington next winter, bearing aloft like the women of 
our neighboring territory, Wyoming, the proud banner of our own 
freedom? Shall we not have the power to proclaim everywhere 
the chivalry and honor of our constitution makers, telling the 
world that these men scorn to accept a right for themselves which 
they would deny to the mothers of men? Will you not so equip 
us with the watchword of liberty that we can inspire all the 
world to turn its eyes upon Idaho as the promised land — the 
land of free women and brave men? 

"But what," said a dear little earnest woman to me today, 
who has never had. any avenue to work in except prohibition, 
"what do the woman suffragists who are not prohibitionists pro- 
pose to do with the whiskey traffic; there's the point?" We 
answer: Tax whiskey and all other intoxicants as heavily as the 
tiaffic will bear, not so heavily as to amount to prohibition, for 
experience proves that the ends of justice are thus defeated for 
then the dealers will sell and pay no tax at all. I know all the 
arguments against the whiskey tax by heart. Time was when I sup. 
posed the tax on liquors was what men call it, a license, but study 
of the subject long ago convinced me of the mistake. Intemper- 
ance is among us like an ever-flowing, dark, deep pestilential 
river. Liquors are sold because men buy them, and the river of 
intemperance flows because it has a perennial fountain in the 
desire of the consumer. Men who drink immoderately are not 
the chief source of its supply, but no matter when the supplies 
come, the river is always flowing, flowing. You may obstruct it 
here and viaduct it there, but you cannot stop the flow. At the 
mouth of the Mississippi there is an immense swamp, so dark 
and pestilential is it that yellow fever lurks in the marshes and 
a green slime craw r ls upon the top of the stagnant water, among 
which reptiles play at hide and seek. 

"Prohibit the accursed thing," cries out the moralist and the 
theorist; "don't tamper or temporize with it, but put it down." 
Vain hope, vain mandate, vain endeavor! If you cover the slum 
and slime with a prohibition plaster, be it ever so strong, the virus 
will exude, or, worse, it will burrow deeper and deeper into hidden 
places, marking its track by desolation and death. 



172 ADDRESS OF MRS. DUNIWAY 

Then what is the remedy? Science says, build levees upon the 
banks and so says common sense. Regulate what you cannot 
destroy. Confine the stream to a limit as narrow as will contain 
its flow and keep the dykes high and in order. This is high 
license, falsely so-called. It is a levee upon the banks of the 
stream of which even those who use the stream for financial pur- 
poses can recognize the need. Give us the levee, gentlemen, and 
oh, give woman the ballot with which to build it high and strong 
and we will help you build right royally. 

Away across — far across the continent in the eastern city 
of Minneapolis — that wonderful growth of modern energy and 
enterprise, with its mammoth mills and merry-hearted men and 
women — we, a short time ago, held a national convocation of the 
women suffragists, and the great building there was filled to 
overflowing. The aisles and all the steps were crowded and the 
interest increased from day to day, and I remember an incident 
upon the closing night, when the only genuine woman voter we 
had among us, who has since, to the shame of the people of this 
nation, been disfranchised by a scheme that would have aroused 
a universal howl if she had been a negro in the south, Miss Bessie 
Isaacs, a most talented and genial and lady-like woman of Wash- 
ington Territory — the only woman voter among us in all that 
vast enthusiastic congregation. And as we were about closing the 
exercises preparatory to adjourning sine die, that vast audience 
arose as with the voice of one and joined in the chorus of the 
Battle Hymn of the Republic, and there between Lucy Stone 
upon the one hand, venerable Lucy Stone who for more than 
forty years has been wielding voice and pen in behalf of human 
liberty, Lucy Stone with her snow-white hair and her snow-white 
cap and her matronly appearance which well becomes her seventy 
years, stood upon the one hand and your humble speaker upon 
the other, and in the center stood Julia Ward Howe, author of 
the Battle Hymn of the Republic, and as that vast audience 
joined in singing the chorus of that wonderfully inspiring battle 
hymn, the enthusiasm grew more and more intense as stanza 
after stanza rolled and swept through the vaulted ceiling, until at 
last as the last line of the last stanza died away in the evening 
air, a universal shout went up from that vast multitude, broken 
only at last by the sweet spoken refrain of Lucy Stone who put 
her hand upon the head of Julia Ward Howe upon the one side 
as I did upon the other, and said: "Yet, men and women, she 
cannot vote!" 

Away in the city — in the classic city of Hartford, in a plain, 
unpretending house of considerable dimensions, hard by the 
elegant home of Mark Twain, and near the not much less sump- 
tuous residence of Charles Dudley Warner, is the residence of 
the greatest woman that America has yet produced, Harriet 



ADDRESS OF MRS. DUNIWAY 173 

Beecher Stowe. When I was in Washington last winter attend- 
ing the National Woman's Suffrage Convention, one of my near- 
est neighbors at the hotel where we all had headquarters, the 
Riggs House in Washington, was the youngest sister of Harriet 
Beecher Stowe, Isabella Beecher Hooker, and as our rooms were 
thus contiguous for days and days, our conversation naturally 
turned on much that interested us both. Mrs. Hooker, who is 
also getting well stricken in years, said to me that she would not 
have thought, so infirm was she at that particular time, from the 
effect of a severe cold, that it was possible for her to attend the 
convention, "But," said she, "I visited my sister Harriet before I 
started. Harriet, as you know, is in very feeble health and is 
just recovering from what we feared would be her last illness, 
but she entreated me with tears in her eyes to attend the con- 
vention and do what I could in her behalf to uphold the cause of 
liberty for women." And the tears stood upon the cheek of 
Isabella as she spoke of Harriet, and she said, "The last words 
Harriet urged upon me as I came away were not to forget that 
it was her wish to live long enough to see the work accomplished 
for women that had been accomplished for the negro." 

Oh, men and brethren of this convention, as I looked as the 
sun .came in at the window upon the pale gold of Isabella 
Beecher's white hair and watched her fine countenance lighten up 
with a halo that was indescribable and I realized that this won- 
derful woman and her more wonderful sister had yet to endure 
the humiliation of disfranchisement which all of those women are 
bearing, I could not help but say in the words of one of the old 
anti-slavery agitators: "I tremble for my country when I re- 
member that God is just." 

Men and brethren, I do not wish to detain you longer. All I 
ask of you as my last word is that when in your deliberations 
you are considering this question which I have hurriedly prepared 
in the rough draft to lay before your honorable body, this manu- 
script having been written this afternoon for the benefit or con- 
venience of the press, as I appeal to you with my last words, let 
me again urge you to remember that the liberties of Idaho are 
not alone being weighed in the balance. You are making history. 
And as on the 2nd day of April 1787, Abigail Adams, for whom 
your humble speaker was named, went before the constitutional 
convention away over yonder in the city of Philadelphia and 
there made a plea for the enfranchisement of women, which was 
only temporarily, as they thought at the time, tabled that men 
might try the experiment of human liberty a little longer, — even 
as did Abigail Adams in her parting injunction to that august 
body, with George Washington in the chair, and her husband act- 
ing as secretary of the occasion saw fit to expunge from the 
n.inutes the fact that his wife had been there, and it was left for 



174 ADDRESS OF MRS. DUNIWAY 

Charles Francis Adams, a descendent of hers to unearth the 
fact and publish it in 1876, — as he did, even I, as the humble rep- 
resentative of such a grand foremother as that, say to you in all 
seriousness and with a plea that I would, that I might make so 
eloquent that no man would dare deny the plea, I would leave 
with you a plea that you will in the magnanimity of your wisdom 
and the chivalry of your own liberties add as a clause to your bill of 
suffrage and elections this section: "The right of suffrage shall 
not be prohibited to any law abiding person, if a taxpayer, or 
person of good moral character, on account of sex, provided 
always that such person be able to read, write and speak the 
English language." 

Now, gentlemen, I ask you, is there any objection to such a 
clause as this in the constitution of the state of Idaho? A clause 
that would fire the patriotic fervor of womanhood all over this 
country; that would arouse an enthusiasm for the adoption of 
this constitution that no power could gainsay, if you would help 
us and we would help you, and the combined influence in behalf 
of the constitution would thus be irresistible. But if you are 
afraid to do this, if you are afraid of the foreign vote and the 
rabble vote; if you are afraid to grant us what we ask because 
of that vote, and that we know is the only reason why you can be 
afraid, then we ask you in the spirit of compromise to give us 
this substitute as a section: "Nothing in this chapter shall be 
construed to prohibit the legislature from extending the elective 
franchise to women." 

These are the crude ideas as pencilled down for the delibera- 
tion of your committee on Suffrage and Elections, which I do hope 
will reconsider its somewhat arbitrary determination to do away 
with the women. I have nothing more to say in this matter. I 
feel sure that you will in the magnitude of your wisdom as a 
convention hear our plea, for I tell you, gentlemen, you cannot 
afford under the growth and impetus of woman's intellectual 
demand for liberty to ignore her petition. 

I thank you for the courtesy you have extended to my humble 
endeavor in behalf of all womanhood. (Applause.) 

The CHAIR. The petition of the speaker who has 
just addressed the convention, as embodied in the resolu- 
tion presented by her, is submitted, under the rules, to 
the committee on Suffrage for their consideration and 
report. 

The regular business of the convention has been, so 
far as the chair knows, exhausted. What is the pleasure 
of the convention? 



JOURNAL RECORD 175 

Mr. RE ID. I move the convention do now adjourn 
until tomorrow morning at 10:00 o'clock (Carried.) 



ELEVENTH DAY. 

Wednesday, July 17, 1889. 

Convention called to order by the President. 

Mr. PRESIDENT in the chair. 

Prayer by Chaplain Smith. 

Roll Call. Present: Messrs. Ainslie, Anderson, An- 
drews, Armstrong, Batten, Bean, Beatty, Bivens, Brig- 
ham, Campbell, Cavanah, Chaney, Clark, Coston, Crutch- 
er, Hagan, Hammell, Hampton, Harkness, Harris, Has- 
brouck, Hays, Heyburn, Hogan, Howe, King, Kinport, 
Lamoreaux, Lemp, Lewis, Maxey, McConnell, Melder, 
Myer, Morgan, Pefley, Parker, Pierce, Pinkham, Poe, 
Pritchard, Pyeatt, Reid, Salisbury, Savidge, Sinnott, 
Shoup, Standrod, Steunenberg, Sweet, Taylor, Under- 
wood, Whitton, Wilson, Woods, Mr. President. 

Excused: Messrs. Ballentine, Glidden, McMahon, 
Moss, Stull and Vineyard. 

Absent: Allen, Blake, Crook, Gray, Hendryx, Jew- 
ell, Mayhew, Robbins. 

Journal read. 

Mr. BEATTY. I think the minutes record that ad- 
journment was taken until 8:00 o'clock. Our rules pro- 
vide it should be termed recess. 

Mr. PRESIDENT. The secretary will correct the 
record in accordance therewith. 

Mr. WOODS. I desire to be sworn in, Mr. Presi- 
dent. (Mr. Woods sworn in by the President). 

The CHAIR. If there are no objections, the record 
will stand. 

JOURNAL RECORD. 

Mr. AINSLIE. It appears to me that when a body 
goes into committee of the Whole, the proceedings that 
take place in the committee of the Whole becomes a part 



176 JOURNAL RECORD 

of the journal. I know that is the rule in Congress and 
I think it is the rule in legislative assemblies, that the 
proceedings of the committee of the Whole shall form a 
part of the record. I see they are omitted in the journal 
of this morning. 

Mr. MORGAN. I called the attention of the sec- 
retary to that fact this morning, Mr. President, and that 
matter will be corrected. I think the report of the chair- 
man of the committee of the Whole should state what 
proceedings had been had and this should form a part 
of the journal, and the secretary will correct the report 
of the chairman of the committee of the W T hole and the 
proceedings of the house will be incorporated in the 
journal. 

Mr. AINSLIE. I believe that should be a part of the 
record just the same as if the convention was in regular 
session — should state who takes the chair and proceed 
as if the conventon was in regular session, and if they 
come to any conclusion, report of the chairman of the 
committee of the Whole is generally that the committee 
of the Whole has had under consideration such and such 
a measure, has come . to no conclusion, but has made 
progress thereon and asks leave to sit again. The whole 
proceedings of the committee of the Whole should be 
transcribed in the journal. 

The CHAIR. The chair understands the rule to be 
this: That whatever conclusion the committee of the 
whole arrived at, the report to the convention goes into 
the journal, but not the proceedings in the committee 
otherwise than as they are reported on the rising of the 
committee. If there is any doubt with regard to this 
matter we may as well settle it now some way. 

Mr. MORGAN. My proposition was, Mr. President, 
and what I supposed to be right, that the chairman of 
the committee of the Whole should report that sections 
two, three, four and five, as the case may be, were 
adopted; that Section one was adopted as amended, and 
that they asked leave to sit again. 

Mr. AINSLIE. My impression is, Mr. President, 



JOURNAL RECORD 177 

that all the proceedings of the committee of the Whole 
have to go in. The proceedings, if they are printed and 
published after this convention adjourns, like the pro- 
ceedings of Congress, should show exactly what was done 
in the committee of the Whole. Nine-tenths of the busi- 
ness of this convention will be done in committee of 
the Whole; by referring to the congressional records, if 
the business done in Congress is done in committee of 
the Whole, by referring to the congressional records, if 
any numbers are kept here, they will show that all pro- 
ceedings of the committee of the Whole are included in 
the record as if they are proceeding in open session. 
Now that is my understanding of it. To state the con- 
clusions of the chairman of the committee of the Whole 
does not state what took place there except their con- 
clusion. If we are to be governed by the parliamentary 
practice in Congress, the proceedings of the committee 
of the Whole should be recorded at length. There are 
several of the gentlemen here-^Col. Reid has been in 
Congress, Judge Mayhew is an old parliamentarian — and 
I think they will concur in this statement. 

The CHAIR. That is no doubt true with regard to 
the House of Representatives under its rules, but this 
convention has not adopted the rules of the House of 
Representatives. It has adopted a set of rules which 
are silent upon this subject, and they have provided that 
Cushing's Manual of Procedure shall supplement the 
rules on matters not provided for in the rules. And my 
understanding is from all parliamentary usage independ- 
ent of any one rule such as they have in the House 
of Representatives, that the record is made up 
from the report of the committee. In other words, the 
committee comes in and makes a report like one of the 
standing committees. The discussions that have been 
had in the committee rooms are not made a part of the 
record of any body, but whatever the committee do or 
accomplish is reported to the convention by the chairman 
and is incorporated in the journal, and until further ad- 
vised with regard to it, I will be compelled to hold to 



178 JOURNAL RECORD 

that effect. If it is desirable in any way to incorporate 
in the journal the proceedings of the committee of the 
Whole, I think it would be necessary to provide for it by 
special rule. 

Mr. WILSON. Mr. President, I think the congres- 
sional record contains everything that transpires in Con- 
gress whether in the committee of the Whole or other- 
wise, but I do not think the journal does. That is my 
understanding of it. Of course, our record here will 
contain everything that transpires. 

Mr. REID. Pardon me; the journal contains an ab- 
stract of it. It does not contain a record of the speeches. 
The journal contains a record of all amendments offered 
— everything. You can't tell the difference, if the clerk 
did not state the fact, that they went into committee of 
the Whole. The journal would be just the same only 
they do not call the ayes and nays. 

Mr. WILSON. Our secretary here has been chief 
clerk of the legislature — the lower house of our legis- 
lative assembly, and probably it might be well to follow 
the proceedings of that body and call on him for that — 
as to what the practice is there. 

Mr. AINSLIE. Our rules, Mr. President, refer to 
the committee of the Whole on Page 25 and Page 26, 
Rule 49. (Reads). Rule 50 (reads). Now I doubt 
that any proceedings in the committee of the Whole have 
been in pursuance with the rules adopted, as the record 
shows how they proceeded to work in committee of the 
Whole. Now the record shows nothing but conclusions 
of the committee as reported by the chairman, and under 
Rule 50 the proceedings of the committee of the Whole 
shall be the same as in the convention, so far as practi- 
cable, and Col. Reid says there is no provision made to 
call ayes and nays in the committee of the Whole. There- 
fore I think the whole proceedings of the committee of 
the Whole should be engrossed. The speeches form no 
part of the record, but when a motion is put, lost or car- 
ried, an abstract of the proceedings showing exactly 
what the proceedings were in the committee of the 



JOURNAL RECORD 179 

Whole should be journalized and form a part of the pro- 
ceedings of this body, I think. 

Mr. MAYHEW. May I inquire what the question is 
before the house? 

The CHAIR. There is no question before the house 
at all. I would suggest, gentlemen, that this is an im- 
portant matter and it may be there will be no objection 
to the incorporation of all the proceedings had in the 
journal. I would suggest that some member draft a 
resolution which will cover the case, if it seems to be 
left in doubt, so that we may pass upon it and have no 
more trouble with it in the future. The chair's under- 
standing of this rule is as stated. He may be wrong. 

Mr. CLARK. Mr. President, yesterday morning the 
gentleman from Shoshone county moved that the con- 
vention, when it adjourned, should adjourn until 8:00 
o'clock to hear an address upon woman's suffrage. Sub- 
sequently that motion was adopted. I think that was 
the actual form of the motion. I would like to have the 
record show whether that was the case or not. If it 
was, the proceedings of last night were entirely out of 
order and should not have been recorded. I would like 
to have it show whether the adjournment had not taken 
place for this specific object to 8:00 o'clock last evening. 

The CHAIR. The journal does show that fact. 

Mr. CLARK. Then I would like to rise to a point of 
order, whether it was possible for the convention to 
transact any other business last night. A large number 
of the members were absent on that understanding and 
therefore it was a sort of notice to them that no other 
business would be transacted. 

The CHAIR. The answer to that is, whether it 
was done regularly or irregularly is a matter of no con- 
sequence. As a matter of fact it was done, and being 
done without objection, by unanimous agreement, it is 
equivalent to a suspension of all rules on the subject. It 
it too late to raise a point of order on that question now. 
Gentlemen, we will proceed to the regular orders of the 
day. 



180 JOURNAL RECORD— RESOLUTIONS 

Presentation of Petitions and Memorials. Are there 
any to be presented? None. Reports of standing com- 
mittees ? 

COMMITTEE REPORT — MUNICIPAL CORPORATIONS. 

Mr. HAGAN. The chairman of the committee on 
Municipal Corporations has not been able to be here this 
morning. At his request, however, I desire to make 
the report for and on behalf of that committee. I will 
state this, that there is one member who disagrees with 
the report of the committee in a minor matter. But it 
has been covered by another report that is now on file 
in this convention. I will send the report to the secre- 
tary. 

The CHAIR. The secretary will read the report on 
Municipal Corporations. 

SECRETARY reads: "We, your committee on Mu- 
nicipal Corporations, beg leave to submit the following 
report. Albert Hagan for the chairman, W. W. Woods. " 

The CHAIR. The report will lie on the table and 
be printed. Are there any further reports from stand- 
ing committees? None. Reports from select commit- 
tees? Final readings? None. 

Mr. AINSLIE. Mr. President, I would say that Mr. 
Jewell, of Washington county, being unavoidably de- 
tained at home, being a member of the committee on 
Apportionment, asks that during his absence Mr. Harris 
his colleague, may serve as a member of that committee 
until he returns. The committee desires to make re- 
port. 

The CHAIR. If there is no objection, it will be so 
ordered. 

JOURNAL RECORD — RESOLUTIONS. 

Mr. AINSLIE. I will now offer the resolution in 
accordance with the suggestion of the chair. 

SECRETARY reads: ''Resolved, That the proceed- 
ings of the committee of the Whole be entered of record 



COMMITTEE CHANGES 181 

in the journal in the same manner as the proceedings of 
the convention." (Seconded). Carried. 

COMMITTEE CHANGES. 

Mr. BEANE. I would suggest that my colleague, Mr. 
Anderson, be put upon the committee on Manufactures 
and Agriculture in my place. My affairs at home are 
so unsettled as to necessitate my absence for a day or 
so, and we have not yet had a meeting of that com- 
mittee. 

The CHAIR. If there is no objection, his request 
will be granted. It is so ordered. 

Mr. ARMSTRONG. Mr. McMahon, who is a mem- 
oer of the committee on Labor, is unavoidably detained 
at home and does not know when he will be able to re- 
turn. His wife is dangerously sick and he asks that his 
colleague, (Mr. Batten) be placed on the committee in 
his place. 

The CHAIR. If there are no objections, the change 
will be made as suggested by the gentleman from Logan. 

Mr. BATTEN. I have just received a letter from 
Mr. McMahon, my colleague, stating that he would be 
here tomorrow evening unless his wife's condition should 
be unfavorable. 

The CHAIR. Is the request to substitute with- 
drawn ? 

Mr. ARMSTRONG. I will withdraw the suggestion. 

Mr. MAYHEW. Mr. President, I do not know what 
will be the sense of the convention upon the proposition. 
I desire to make a motion now for adjournment. It 
seems to me that the committee on Judiciary and sev- 
eral other committees have so much before them that 
they have not had time as yet to complete their labors. 
Now I desire to make a motion that we adjourn until 
some time this evening before we resolve ourselves into 
a committee of the Whole in order to give time for these 
committees to perform their duties. Mr. President, you 
are aware, as one of the members of the committee on 
Judiciary, that there is a great deal before this commit- 



182 NOTICE OF MOTION TO AMEND RULE XI. 

tee — a great deal for them to consider. I really think 
we will save time by allowing the committees to perform 
their duties, formulate their reports and return them to 
this convention and have them printed, and after this 
is done, we can have a full discussion upon all ques- 
tions that may come up, I therefore move, Mr. Presi- 
dent, if I may be supported, that this convention adjourn 
until 4 o'clock this evening. I am satisfied that we will 
be saving time. In committee yesterday the Judiciary 
committee spent three or four hours in the discussion of 
the serious matters there coming before it, and if that 
discussion is made there and we can get up an article 
to meet the approbation of the convention, it is better 
to fix the whole thing in that way than to have a long dis- 
cussion and amendments offered in this convention. I 
hope my motion will meet with the approbation of this 
convention. 

NOTICE OF MOTION TO AMEND RULE XL 
Mr. BATTEN. I have a motion to make before that 
motion is put. I hereby give notice that tomorrow, July 
18th, 1889, I will move to amend Rule 11 of the standing 
rules as follows: "Amend by adding after the word 
"Convention" at the end of the second line of said rule, 
the following: 'and in no case shall any member be al- 
lowed to occupy more than fifteen minutes at any one 
time except by unanimous consent of the Convention/ " 
A MEMBER. I move an amendment of the motion 
to take a recess, that it be to adjourn until tomorrow at 
10 :00 o'clock. (Seconded) . 

The CHAIR. It is moved and seconded that the con- 
vention now adjourn until ten o'clock tomorrow morning. 
(Vote). Carried. 



TWELFTH DAY. 

Thursday, July 18, 1889. 
Convention called to order by the President at 10:00 



A. M. 



QUESTION OF PERSONAL PRIVILEGE 183 

Prayer by Chaplain. 

Roll Call. Present: Messrs. Ainslie, Allen, Ander- 
son, Andrews, Armstrong, Batten, Beatty, Bivens, Brig- 
ham, Campbell, Cavanah, Chaney, Clark, Coston, Crutch- 
er, Gray, Hagan, Hammell, Hampton, Harkness, Harris, 
Hasbrouck, Hays, Hendryx, Heyburn, Hogan, Howe, 
Jewell, King, Kinport, Lamoreaux, Lemp, Lewis, Maxey, 
Mayhew, McConnell, McMahon, Melder, Myer, Morgan, 
Moss, Pefley, Parker, Pierce, Pinkham, Poe, Pyeatt, Reid, 
Robbins, Salisbury, Savidge, Sinnott, Shoup, Standrod, 
Steunenberg, Stall, Sweet, Taylor, Underwood, Vineyard, 
Whitton, Woods, Mr. President. 

Excused: Messrs. Ballentine, Beane, Glidden. 

Absent: Blake, Crook, Pritchard, Wilson. 

JOURNAL read. 

The CHAIR. If there are no corrections, it will 
stand approved. 

MR. PARKER SWORN IN. 

Mr. REID. I desire to present the credentials of 
Mr. A. F. Parker, delegate elected from the county of 
Idaho, and move that they be received and he be sworn 
in. (Motion seconded.) Carried. Mr. Parker is sworn 
in by the president. 

QUESTION OF PERSONAL PRIVILEGE. 

Mr. AINSLIE. Mr. President, I rise to a question 
of personal privilege, and desire to send to the clerk's 
desk and have read 

The CHAIR. We are inclined to think at this time 
that this will be out of order until we get through with 
the regular order of business. 

Mr. AINSLIE. I understand a question of personal 
privilege is in order at any time. 

The CHAIR. I am not sure but what the gentle- 
man is correct. The chair will withhold any ruling on 
that question. 

(Secretary reads extracts from the Salt Lake Trib- 
une of July 17th). 

AINSLIE. Now, Mr. President, the representatives 
of the press through the courtesy of this convention, 



184 QUESTION OF PERSONAL PRIVILEGE 

have seats upon the floor for the purpose of furnishing 
the papers they represent with a fair and honest account 
of the proceedings of this convention. Now, sir, the 
statement, the first part of it there, that I stated that I 
was ready to withdraw from the democratic party is 
too ridiculous for denial. No such assertion was made on 
this floor by me, but I will give the representative of that 
paper the credit of having come to me this morning and 
apologizing for that portion of the dispatch, but, sir, it 
is a very singular thing to me how history repeats itself 
in this convention, so far as deliberative bodies are con- 
cerned, that the representatives of that paper invariably 
at democratic conventions or legislatures, and here now 
in the constitutional convention, invariably misrepresent 
and falsify the positions and statements of democrats, 
but never makes a mistake as to the republicans. That 
is the truth. I have never seen the positions of the re- 
publicans misrepresented or falsely stated by the repre- 
sentative of that paper on this floor, but I will say that it 
has been the habit and constant practice of the corres- 
pondent of that paper to falsely state the positions of the 
democrats, not only in their conventions but to cram the 
columns of the paper full of lies about democrats upon 
every question, nearly, that may arise touching the posi- 
tion of the Mormon people in this territory. Now, sir, 
I have been a democrat ever since I have been old 
enough to know the difference between democrat and 
whig, and it is too late in life to have any idea in the 
world of changing my political opinions. I have no de- 
sire to answer that part; any such assertion refutes it- 
self. 

Now, Sir, as to that man Hoge, I never saw the man 
that I know of in my life until the other day and I did 
not know who he was then until I was introduced to 
him. I never had any conversation or conference with 
him nor said a half dozen words to him, except what was 
said at the Overland Hotel when it was crowded with 
people. I did not know what his business was here and 
did not care what it was, but I do have to say that this 



QUESTION OF PERSONAL PRIVILEGE 185 

man Hoge has always been regarded as a republican. 
Now, sir, I have no consultation with a man like that 
who has been fighting the democratic party ever since 
I have been in the territory, so far as I know. I know 
that in '82 when I ran for congress, as well as the 
time this man Hoge was on the committee — the terri- 
torial committee — there was no consultation with them, 
but he did the best of his ability to secure the vote of the 
Mormon element of Bear Lake county for the republican 
candidate in congress. I know nothing about Mr. Hoge 
personally and nothing of his political history except 
what I have seen published in the Idaho Statesman. I 
never met him until the other day, when I was intro- 
duced to him and asked him how long he was going to 
remain, or something of the kind, but I never had any 
conference with him. 

Now, sir, it has been the purpose of this paper to 
abuse not only me, but the democratic party of Idaho 
Territory, ever since this man Charlie Goodwin got to 
be editor-in-charge. I believe the proprietor of it claims 
to be a democrat. Well, I have heard of such democrats 
before — men who talk democracy and vote republican- 
ism. They start out professing to be an independent 
and fair sheei>— an independent and fair newspaper. 
They are against polygamy and polygamists among the 
Mormons of the territory. I have not been apologizing 
for bigamists or polygamists in any manner, shape or 
form, and while I have had the honor to serve the people 
of Idaho Territory in Congress four years, I never yet, 
to my knowledge, have received any letter or communica- 
tion from any Mormon in regard to any political matter 
whatever. The only communication I received from a 
Mormon for any service at all, was one from Bear Lake 
or eastern towns of Idaho, asking that the postofiice be 
established at some settlement. Well, I will attend to 
that for anybody, whether Mormon, Gentile, Negro or 
Indian. People have their rights and are entitled to 
postoffices, and when they send petitions signed by a suf- 
ficient number of people to present to the postoffice de- 



186 QUESTION OF PERSONAL PRIVILEGE 

partment, I would recommend that a postoffice be es- 
tablished and that they have those advantages. 

But this paper is continually assailing me for some 
purpose or other, because probably I may have said 
some time or other that I did not like the Salt Lake Trib- 
une, and I suppose you know my opinion of it partly, 
and that it is the most infernally filthy sheet that was 
ever published on the face of God's green earth, and my 
opinion of the conductors of the sheet is about equivalent 
to that of the paper. Now the other day I expected to 
rise to a question of privilege on this first assertion, "is 
here in constant consultation with the Mormon wing 
of the democratic party in the interest of the Church," 
etc. Upon stating my intention to rise to a question of 
privilege on behalf of the democratic party as repre- 
sented in this convention, I was requested by several 
republicans not to do so, that a full and fair retraction 
would appear in the columns of this paper. This has 
never appeared. Now I say if such a sheet as that pos- 
sesses the privileges accorded them on this floor, of mis- 
representing and falsifying the people — falsifying the 
democratic delegates of a large part of this territory, 
that probably may have a majority or be almost equal in 
voting strength to the republican party — I say when 
they are accorded privileges by the courtesy of this con- 
vention, that they should not be permitted to abuse them, 
but I hope that any correspondent, no matter what paper 
it is, democrat or republican, will be fired out of this 
hall when they falsify the position and principles of the 
democrats as they have done in this instance. I think 
I have stated my position clearly and I submit the ques- 
tion to the convention. 

Mr. CAVANAH. Mr. President, I have ^ead the 
Salt Lake Tribune for twelve or fifteen years. I have 
been in sympathy with it, and its fight against Mormon- 
ism, and believed everything it has said. My faith was 
a little shocked at those letters issued by the paper. I 
have heard no democrat in caucus or out of it but what 
has stood squarely as anti-Mormon. I have good friends 



QUESTION OF PERSONAL PRIVILEGE 187 

on this floor, both democrats and republicans, who know 
that I have voted that from the commencement. And 
they know that I have been a strong anti-Mormon demo- 
crat, and I would like to know where this information 
comes from. If there are any Jack-Mormons in our par- 
ty, I would like to know it. I have voted, not for politi- 
cal emolument, like some republicans have; I have voted 
from strictly honest conviction, and I feel as if I am im- 
posed upon the same as the rest of my party in this is- 
sue, and I strongly protest against it. It is unmanly — 
it is unfair. We were sure — I was sure that if we would 
say nothing about that article that was in the paper a 
week ago, that there would be a full retraction. Is this 
the retraction? 

Mr. MAYHEW. Mr. President, I am willing to ac- 
cord to every one of my republican brethren on this 
floor, and heretofore have always been willing to accord 
to every republican in the few past legislatures I have 
had the honor to be a member of, the privilege of ex- 
pressing their sincere and honest convictions against 
the questions of polygamy and Mormonism. I do not 
think it is fair, just or honorable for any correspondent 
of a newspaper or any association of persons, I do not 
care what their political proclivities and sentiments may 
be, to continually put a brand upon the party that we 
claim and which we purport to be a member of, to brand 
them by false representations as to their sentiments 
upon any given question. I say that it brings odium and 
disgrace and shame upon the party that is national in 
its character, and I must say that the democratic party, 
so far as my knowledge extends, has a desire for the 
prosperity and desire for the greatness of this country 
equal to that of our republican brethren. Now, I say 
when a correspondent of a paper does use language and 
sentiments and utters ideas and language that is deroga- 
tory to the true character and position of any political 
party, that that correspondent, when he has been ac- 
corded the privilege of this floor to correspond with his 
paper, should not be permitted to falsify the position of 



188 QUESTION OF PERSONAL PRIVILEGE 

any member of this convention, making no difference 
what his political sentiments may be. I read with some 
astonishment the two articles that appeared in the Salt 
Lake Tribune and in the Statesman, that the democratic 
party in its caucus had invited or had in its midst a 
Bishop Hoge. Now, Mr. President, I don't know Bishop 
Hoge, I never saw Bishop Hoge, and I may say that I 
can express an honest sentiment when I say that I do not 
know that I ever saw a Mormon. I never have had the 
misfortune to live in a section of the country where 
Mormonism was taught — where that class of people 
resided, and I will say this, that there was no man in 
the democratic caucus on that day that we were 
charged with having Mormons in our midst, except the 
members of this convention and the members of the 
democratic caucus. If any member of that caucus 
should have said that we had Jack-Mormons or any 
Mormons in that gathering, they are sadly mistaken, 
and how it can be so uttered and stated to the people at 
large that we were closeted with those Mormons, and 
that that Mormon was about to influence the democratic 
caucus — I say it gives to the world and to the people of 
this territory to understand that the democrats 
are associated with the Mormons in order to 
perpetrate and continue their infamous crimes. 
It is wrong to do so — it isn't right, and I think, Mr. 
President, the correspondent, I don't care who he may 
be, is a falsifier in placing men just as honorable as any 
upon this floor in a false position, and I hope that this 
convention, both democrats and republicans, will not 
permit anything of that kind in the future to be done. 
For one, as a democrat, if I thought any democratic 
paper or editor should falsify the position of any repub- 
lican in this house or upon this floor, I should feel it 
my bounden duty to rise in my place on this floor and 
refute such false assertions. I think our republican 
brethren here are as equal in honor and as honest in the 
conviction of their sentiments, so far as Mormons are 
concerned, as democrats. We would claim on the part 



QUESTION OF PERSONAL PRIVILEGE 189 

of the democrats some rights. So far as my sentiments 
are concerned, so far as my action in this convention 
will be or ever has been since I have been a resident of 
this territory, it has been universally against Mormon- 
ism and polygamy, and I think by God's will and power, 
I shall always continue so, and I hope no man, cor- 
respondent, or any one else, shall be permitted on this 
floor as correspondent or otherwise to falsify men as 
honorable as any in this territory or upon this floor. It 
is not right; it is ungenerous; it is impolitic. I regret 
that such is the case. I feel the sting, coming from the 
editors connected with that paper and those papers, so 
bitterly that sometimes I cannot refrain from uttering 
sentiments that would not be very pleasant to their ears. 
I have nothing to say against the paper generally. I 
say the Salt Lake Tribune is a paper of great value to 
the people; it is a newsy sheet and many articles have 
been written and published in that paper that I heartily 
endorse and suppose I shall continue to endorse, but 
not when it comes to vilifying and falsifying members 
of this convention. I hope that in the future it will not 
be continued. 

Mr. POE. Mr. President, I come from that section 
of this territory where we have not been cursed with 
the evil of Mormonism. We in our section of the 
country have not experienced the evils emanating from 
that church and the priests of that church, of so much 
interest in that section of the country. I have been edu- 
cated to believe that the institution of Mormonism was 
inimical to our institutions; that it was a curse to our 
land, and therefore I have been opposed to the institu- 
tion, and now all that I ask in behalf of my party in 
this convention is that we be dealt with fairly. We 
came here for the purpose of constructing a constitu- 
tion which will redound, not only to our credit but to 
the interests of the state of Idaho. And as I say, all 
that we ask is fair-play. Whatever position we may 
take as a party, we are willing that not only the mem- 
bers of this convention, but that the world should criti- 



190 QUESTION OF PERSONAL PRIVILEGE 

cise. But whenever we extend the courtesy of this con. 
vention, in common with our republican members, to 
correspondents to report the proceedings of this conven- 
tion, we desire that whatever we may say shall be 
stated, and we are willing to stand by it; but we do not 
accord to the press or any one else the right to falsify, 
and whenever they misrepresent this convention, 
through the courtesy of this convention, and publish to 
the world falsehoods that place us in a light that is not 
true and that is calculated to bring reproach and shame 
upon us as a party, I say that we have a right to de- 
mand an absolute retraction with the same publicity 
that the falsehood was circulated. I am not disposed to 
ask this convention to expel the correspondent of that 
paper from this convention, but I believe it is a right 
we have to have such retraction made as would be 
sufficient to contradict the falsehood that he has uttered. 
As far as I am concerned, I rest content with my own 
rectitude and the rectitude of my party. And whatever 
we do as a party, whatever measure we may take as a 
party, let the world criticise it. But I hope that this 
convention will not permit any gentleman the courtesy 
of this floor who will continuously through the medium 
of his paper, circulate to the world a falsehood. I 
maintain, gentlemen of this convention, that we as a 
party are entitled to the retraction in that paper of those 
false assertions, and that retraction I think we are en- 
titled to have at the hands of this convention. I think 
it should be made, not in the kind of language that has 
been presented in what is purported to be an apology or 
retraction in the past, but that it should be so plain and 
unequivocal that the world must see that they mean the 
correspondent of that paper, sitting here in a position 
to know what he utters to be either true or false, — that 
it must be in such plain, unequivocal terms that the 
world must at once concede the fact that that man has 
either wilfully misrepresented the facts or stated those 
which he knew to be untrue. 

A gentleman of his erudition, of his learning, of his 



QUESTION OF PERSONAL PRIVILEGE 191 

knowledge of language, I can't conceive it possible that 
he can get up before this convention and assert to the 
world that he was mistaken in the language uttered by 
Mr. Ainslie — I can't conceive that the language uttered 
by Mr. Ainslie when he introduced that resolution could by 
any possibility be construed into a statement that he 
withdraws from the democratic party. It cannot be; 
therefore I say that the gentleman must have wilfully 
asserted that which he knew to be untrue when he 
penned those words. And I do not believe therp is a 
man in this convention but knew the falsity of the 
words, but he thought that as he has been in the habit 
of falsifying and vilifying the democratic party as to 
their position upon this Mormon question, he would be 
upheld by the adherence of his party in the utterance 
of this falsehood, but I do not believe, gentlemen, that 
you will uphold any man in falsifying your brethren in 
this convention. As I said before, let the truth go to 
the world, but, gentlemen, save us from the false pen, — 
from a gentleman who wields with such venom a slan- 
derous pen. 

Mr. BATTEN. Mr. President, this question of 
privilege which has been moved by the gentleman from 
Boise is one that affects equally every democratic mem- 
ber on this floor. 

Mr. McCONNELL. Mr. President, I would like to 
ask the unanimous consent of the convention to have a 
resolution read. 

The CHAIR. Does the gentleman from Alturas 
yield? 

Mr. BATTEN. I will yield. 

SECRETARY reads: 

"Resolved that the correspondent of the Salt Lake 
Tribune be requested to publish a retraction of the 
charges against the Honorable George Ainslie or be 
denied the future privileges of the floor." (Applause.) 

Mr. McCONNELL. And I move its adoption. 

The CHAIR. It is moved and seconded that the 



192 QUESTION OF PERSONAL PRIVILEGE 

resolution be adopted. The question is now before the 
convention. 

Mr. McCONNELL. Mr. President, we are here as 
the repesentatives of an honest and honorable con- 
stituency, and let us represent them fairly on this floor. 
If any charges have been made against any member 
here, democrat or republican, by a member of this 
house or correspondent of any paper, he should, if an 
honorable gentleman, make the amende honorable, and 
it is my opinion as a republican that there should be no 
false charges, no lies disseminated against any democrat 
or any republican. (Applause.) The honorable gen- 
tleman from Boise I have known a great many years. 
We have been political opponents when to be political 
opponents meant war to the knife, but I have never 
known him to stoop to a dishonorable act, and I stand 
here today to ask that the convention do the fair thing 
by Mr. Ainslie. (Applause.) 

Mr. BATTEN. Mr. President, the resolution as 
drawn seems to me indefinite. I do not know to what 
charge it refers, nor have I in my mind all that was read 
at the clerk's desk. It seems to me from my recollection 
now that there were several matters charged, and I would 
like to have the resolution reformed to read definitely 
what charges are referred to, so that we may vote or 
discuss it intelligently. It simply says the charge made 
by the correspondent of the Salt Lake Tribune. I would 
like to know to what charge reference is made. As I 
understood the reading of the newspaper articles a 
moment ago, there were several referred to. 

A MEMBER. Mr. President, if the resolution that 
has just been offered prevails, and I am sure the good 
judgment and spirit of fairness that prevails in this 
body will see that it is carried, then I have nothing more 
to say. I simply rise in my place to refute the charge 
which has been made against every democratic member 
in the article read by the clerk. I must say, and I know 
I will be borne out by every democratic member here, 
that Mr, Hoge's name, whoever he may be, was not for 



QUESTION OF PERSONAL PRIVILEGE 193 

one moment or one instant mentioned in our caucus; 
the spirit that dominated that caucus was a spirit of 
patriotism. Nothing but a unanimous sentiment pre- 
vailed in our caucus by all lawful and constitutional 
methods to stamp out polygamy, and I am sure our 
republican friends will see that we are not left to rest 
under that stigma of the charges so unjustly heaped 
upon us, and I am glad it has emanated from a repub- 
lican member to see that we have ample justification in 
this matter. 

Mr. BATTEN. Mr. President, I called for informa- 
tion but have not received it yet. I don't know whether 
I am in order or not as to this question. I had not in- 
tended when the gentleman from Boise rose to a ques- 
tion of personal privilege, to interfere in the matter 
whatever. But there have been some references made 
upon that question here that I, as a republican, do not 
feel like letting go unchallenged, at least without answer- 
ing. However, that question of personal privilege is 
before the house and also the resolution of the member 
from Latah. I don't know which we are discussing, 
but I have something to say upon both of them. 

Now with reference to the suggestion made upon 
the question of personal privilege, the gentleman from 
Boise has referred to the man who, from all accounts^ 
must be an infamous character, as having been identi- 
fied with the republican party. I have been in the 
territory of Idaho ten years prior to the time the gen- 
tleman refers to that this person was a member of the 
republican party. He may have been, for aught I 
know, a member of the territorial republican committee, 
but if so, I have no knowledge of it, and I will not take 
issue with gentleman upon that point, for he probably 
has information that I know not of. I have this, how- 
ever, to say, that if he ever was a member of the repub- 
lican party, we long since repudiated him and he has 
left us and gone to some other party; but it is not fair 
now to charge us with having harbored a man like that. 
Of course, the republican party cannot be responsible 



194 QUESTION OF PERSONAL PRIVILEGE 

for every member that may choose from some improper 
motive to join its ranks. But men of that kind do not 
find a congenial home in the republican party, and gen- 
erally find their way out of it and go to some other 
party. I do not know where Bishop Hoge belongs today 
and do not care, but he does not belong to us and it is 
not right in a non-partisan convention like this to at- 
tempt to shoulder him upon us. In fact, Mr. President, 
I have understood this to be a non-partisan convention, 
and I have understood that my friend from Boise goes 
so far as to only drink non-partisan drinks. I have 
understood that when he takes his drink, instead of 
taking straight old democratic Bourbon, he pours a 
little republican soda-water into it, or if it is not 
accessible, then he puts a little more of the Bourbon 
into it than he does the soda-water. However, we will 
pass that. It is not fair, Mr. President, to charge upon 
us that we are responsible for the actions of Bishop 
Hoge, or that we are in sympathy with him. Now I, for 
one, have not charged upon our democratic brothers 
that they are in sympathy with the Mormon element. I 
have been from the start in hopes that we would all 
stand solid upon this one question, and so far as I have 
had anything to do upon that matter, I have done my 
level best to be in accord with them or get them to be in 
accord with us, that we may act harmoniously upon that 
question. I hope before this convention adjourns it 
will publish to the world that the republican party and 
the democratic party stand side by side upon that ques- 
tion as one solid alliance. 

Another member also referred, I thought, in re- 
flecting terms upon the republican party. Now I rise 
to defend the republican party against any charges of 
the kind. We are- not here to utter any slanders or 
cast any reflection upon our friends of the democratic 
party. But I will not allow this moment to pass without 
saying a word, at least, in defense of my old friend, the 
polished and able editor of the Salt Lake Tribune. And 
I would be sorry to see the power of that man or the 



QUESTION OF PERSONAL PRIVILEGE 195 

influence of that paper torn down. I do not believe, 
however, if this whole convention acted as one man it 
could tear down the influence of Judge Goodwin or de- 
tract from his pure character or break down the 
influence of that paper. I admit, Mr. President, that a 
mistake has crawled into the columns of that paper. I 
admit that Mr. Ainslie has been misrepresented, but the 
question with me is this: whether that was intentional 
misrepresentation, — whether the correspondent of the 
Tribune intentionally sent the dispatch to misrepresent 
Mr. Ainslie. Now it is very easy in the course of a 
debate, when a correspondent is sitting by and listening, 
to misunderstand and by that means to misrepresent in 
the columns of a paper. I understand from Mr. Ainslie 
himself that the correspondent of that paper has been to 
him and has apologized for the mistake he made and 
will correct it. Now upon that point I say that if that 
resolution offered by the member from Latah is on the 
mistake referred to by Mr. Ainslie, action upon that 
resolution should for the present be deferred, for the 
reason that if the correspondent of the Salt Lake Tribune 
has already apologized to the gentleman from Boise, I 
have no doubt he will make that apology public and have 
it so published in the paper. 

Mr. AINSLIE. That was only in regard to the 
statement that I was ready to withraw from the Demo- 
cratic party. 

Mr. BATTEN. I do not know what that resolution 
refers to. It is indefinite and it seems now from the 
statements of my friend Ainslie that there is more than 
one doubt. But I will go as far as any one to censure a 
paper or a correspondent who wilfully publishes a mis- 
representation of any member on this floor, although I 
think if we are in the business of correcting all cor- 
respondents and all newspapers, we probably will have 
a summer's undertaking before us. But I propose this 
as to the correspondent of the Tribune or of any other 
paper, that if he has made a mistake, give him time to 
publish a correction of that mistake, and not by at once 



196 QUESTION OF PERSONAL PRIVILEGE 

passing a resolution censuring him and placing him 
before the world in an improper light. Let him have a 
few days in which to correct that mistake. If he doesn't 
do it, then I think is the proper time to adopt a resolu- 
tion of that kind. And I am not in favor of the resolu- 
tion until we find whether this correspondent, upon 
learning of the mistake he has made, is unwilling to 
correct it. If he is willing to correct it — admits the 
mistake — then I think we should not allow it to go fur- 
ther. If we do, if we pass resolutions on the spur of the 
moment, a wrong impression may be sent out to the 
community. I don't want any one to think for a moment 
that I am personally at any time unwilling to do justice 
to an able political opponent. There is one gentleman 
upon this floor who can bear testimony that two years 
ago I rose in the council chamber of this building to 
come to his defense upon a matter in which I thought I 
was justified, and came to his defense and stated mat- 
ters which I thought were true. For that I was most 
ungraciously lashed by the Statesman in this city here. 
I let the matter pass. I did not rise to any question of 
personal privilege, but I am at all times willing to be 
just to any political opponent as well as to political 
friends. I ask at no time any unjust advantage of any 
political opponent, and I am willing now to do justice 
to Mr. Ainslie or to any other Democratic member of 
this house, but I do ask that we shall not be rash and 
pass resolutions here condemning a correspondent in a 
matter in which he may have innocently erred. Give 
him the time to do the honorable thing and if he refuses 
to do it, there will be time to pass the resolution. I say 
here, I will not, for one, vote for that resolution at this 
session and this time. If that correspondent is given 
time to do the right thing and does not do it, then it is 
a matter for proper consideration. 

The gentleman from Shoshone asks me as to whether 
he may not do that until this convention adjourns. He 
can do this within a day or two. If he does not do it 
within that time then we can adopt the resolution. I 



QUESTION OF PERSONAL PRIVILEGE 197 

do not propose to wait a week or two weeks or anything 
oi the kind. I simply ask that that correspondent shall 
have the same opportunity that any other gentleman 
shall have to correct an error. 

Mr. CAVANAH. I would like to hear that resolu- 
tion read again. 

Mr. MAYHEW. Will the gentleman permit me; I 
will say to my friend that the same matter appeared in 
the Statesman here. The next issue came out and that 
paper very kindly and gentlemanly stated that they 
were mistaken— humbly apologized in the first issue. 
The Tribune — the same thing appeared in that paper — 
and there has never been any apology, and that has 
been a week ago. 

Mr. BEATTY. When did this matter appear. 

Mr. MAYHEW. I don't know — I never read it. 

Mr. BEATTY. I understood this morning from Mr. 
Ainslie that the correspondent had been to him and 
recalled a matter stated yesterday, and I don't know 
what we are talking about scarcely. 

Mr. MAYHEW. Don't you recollect the editorial in 
that paper read this morning that they would not make 
any corrections and that it was not a mistake? 

The CHAIR. You will please proceed in order, 
gentlemen. 

Mr. BEATTY. I understand this resolution is not 
directed to the Tribune, but to the correspondent of the 
Tribune and the Statesman, — I don't know which — if 
the resolution is indefinite, that that correspondent is 
meant. Now I will say I understood the member from 
Boise that the correspondent had made some apology to 
him concerning some one of these matters referred to — I 
don't know which now. Now, all I ask is that that cor- 
respondent have a reasonable time in which to correct 
the error. 

The CHAIR. The secretary will read the resolution 
for the information of the convention. 

SECRETARY reads: 

''Resolved that the correspondent of the Salt Lake 



198 QUESTION OF PERSONAL PRIVILEGE 

itfe MM I l%l l; u'.i 

Tribune be required to publish a retraction of the charge 

published against Hon. George Ainslie, or be denied the 
privileges of the floor." 

Mr. CAVANAH. I move, Mr. President — 
Mr. McCONNELL. I desire to explain concerning 
that resolution — I mean in respect to the charge, that 
greatest of all charges which could be published against a 
democrat of Mr. Ainslie's standing, that he was about 
to go over to the republican party. (Laughter). 

Mr. HAGAN. I agree with the gentleman who last 
spoke, that it is a grievous and serious charge to say 
that any democrat at this time would leave that party 
and go to the republican party. (Laughter.) The demo- 
cratic party here needs no defense on the question of 
Mormonism, and from the sentiment expressed in the 
caucus of that party, I think the members need not and 
will not be put upon their defense. I think this thing 
should have passed over by a simple question of privilege 
from Mr. Ainslie. There will be a time in this conven- 
tion when the republicans can show how patriotic they 
are, and probably when the crop of senators increases 
we will have more excuses and probably more speeches 
upon questions of privilege than we have now, and 
we therefore set a precedent at the present time that all 
the various candidates after statehood for senators shall 
now come up and lay the foundation for future great- 
ness upon questions of privilege, or that we shall pass 
resolutions for clap-trap or buncombe, and I do not refer 
to this only, because I believe that ought to be a stand- 
ing rule. I say taking all things into consideration, I 
have no apology to make for my party upon this ques- 
tion of Mormonism. Early in life I commenced my 
fight against it and have always had my sentiments 
crystalized very young in opposition to its practices. 
Polygamy and bigamy is not the crime of Mormonism, 
but above and beyond it all there is a theocracy that 
rules and controls its destinies. This is more dangerous 
to this country than any of its parties, because in its 
theocracy it centralizes its power for bad and never 



QUESTION OF PERSONAL PRIVILEGE 199 



exercises it for good. There is the question, and we 
democrats and republicans here in this convention 
should so trame the organic law of this land as to strike 
down theocracy first, and then fall all the other evils of 
the institution. To do that we must attack, of course, 
those practices, and we will do it at the proper time, and I 
say that so far as I know, the republicans of this con- 
vention and democrats, too, are in one harmonious ac- 
cord upon the proposition and it requires no member 
here, I take it, to get up to express himself upon the 
question of Mormonism. I congratulate us all that we 
have reached one question upon which we seem to 
unite. I remember that in the fight referred to by the 
Tribune against Mormonism in Utah, it stood shoulder 
to shoulder with the democratic party there, and advo- 
cated together with the democrats in Utah every prin- 
ciple that went to strike down this theocracy of which 
I spoke. It has made a long, a manly and honorable 
fight, and those attacks it now makes upon the demo- 
crats and the democratic party I think are made through 
correspondents thoughtlessly; if not thoughtlessly, then 
certainly maliciously, because the editor of the Tribune 
knows that at home there were no more active men that 
rallied around the labor party in that territory than he 
found in the democrats living there, to fight that. They 
went to our party to select their candidate for Con- 
gress; they had to come to the democratic party of that 
territory to protect the laborers against the corruptions 
of republican office-holders in the territory over and 
over, who went there and became Jack-Mormons. I do 
not apply that here because in this young state we shall 
hear no uncertain sound in its constitution. In all the 
political parties of this territory we shall never lack any 
disposition to do right in this matter, and therefore I 
say for one that I am proud to say my party has but 
one voice upon this question, and I congratulate them 
upon that and also congratulate the convention itself. I 
am in favor of the resolution because I think the bravest 
man in the world is the man that apologizes when he is 



200 QUESTION OF PERSONAL PRIVILEGE 

wrong. And I hope that he is as brave as the gentle- 
man from Alturas says he is, and will accord to Mr. 
Ainslie the apology or retraction that is due him — and 
I think he will — there will be no difficulty about that 
and should be none about the resolution. It is a mis- 
representation to my knowledge. I have nothing further 
to delay this convention for, and I hope the resolution 
will pass. 

Mr. CAVANAH. I wish to make an amendment to 
that resolution and I would like to hear it read again. 

SECRETARY reads. 

Mr. CAVANAH. I move that all be stricken out 
after the words, "Hon. George Ainslie." 

Mr. McCONNELL. I will accept the amendment. 

Mr. CAVANAH. I make it for this reason; I don't 
want this convention to place themselves in as ridiculous 
a position as- the last legislature here did and be laughed 
at all over the country. 

Mr. HAGAN. I think the amendment is a good one 
and hope it will be accepted. 

Mr. McCONNELL. I have accepted it. 

The CHAIR. I would suggest that the word "re- 
quired" be changed to "request" and then it be left to 
him to make such amende as he sees fit. 

Mr. McCONNELL. I will accept the amendment. 

The CHAIR. It is moved and seconded that all that 
portion of the resolution after the name of Mr. Ainslie 
shall be stricken out. 

Carried. 

The question now recurs upon the adoption of the 
resolution as amended. 

Mr. SHOUP. Mr. President, I wish to offer a sub- 
stitute to the motion now pending. 

SECRETARY reads: "That the resolution be left to 
a select committee of ten, five democrats and five re- 
publicans, and that the said committee shall be required 
to report tomorrow. James M. Shoup." (Seconded.) 

The CHAIR. Gentlemen, it is moved and seconded 
that a committee of ten be appointed, five republicans 



COMMITTEE REPORTS 201 

and five democrats, to report tomorrow. (Vote.) 
Motion lost. 

The question now recurs on the adoption of the 
original resolution as amended. (Vote.) Carried 
without a dissenting vote. 

Mr. REID. I call for the regular order of business. 

The CHAIR. Presentation of petitions and mem- 
orials. None. Reports of standing committees. 

COMMITTEE REPORTS. 

Mr. McCONNELL. The committee on Education 
desires to report. 

SECRETARY reads report: 

"To the President and Members of the Idaho Con- 
stitutional Convention, Gentlemen: We your committee 
on Education, Schools, School and University Lands, beg 
leave to submit the following report. W. J. McConnell, 
Chairman." 

The CHAIR. The report will lay upon the table and 
be printed. 

Mr. CAVANAH. The committee on Manufactures, 
Agriculture and Irrigation desires to report. 

SECRETARY reads: 

"Mr. President and Members of the Constitutional 
Convention: The committee on Manufactures, Agricul- 
ture and Irrigation submit the accompanying report. 
Frank P. Cavanah, Chairman." 

The CHAIR. The report will lie upon the table and 
be printed. 

Mr. BEATTY. The majority of the committee on 
Elections and Suffrage desires to report. 

SECRETARY reads: 

"Mr. President, your committee on Elections and 
Right of Suffrage have performed the duties thus far 
assigned to them, and as a result the majority of your 
committee respectfully submit the report found herewith. 
Beatty, Chairman, Salisbury, Hays, Heyburn. 

Mr. AINSLIE. In explanation of my views, I ask 
leave to submit the voice of the minority. 



202 COMMITTEE REPORTS 

SECRETARY reads: 

"Mr. President, the undersigned members of the committee on 
Elections and Right of Suffrage, being unwilling to concur in the 
report of the majority of said committee, respectfully beg leave to 
submit their minority report. 1 

While we fully realize the importance of harmonious action as 
tending to recommend to the favorable consideration of Congress 
the constitution which may be adopted by this convention, we are 
conscious of the fact that the general government has ever been 
jealous of the rights of its citizens, and has thrown around the 
right of suffrage every safeguard consistent with the constitution 
of our country. 

We believe that the right of suffrage and of holding office 
should be firmly fixed in the organic law of the state, and thus 
rendered secure from liability to frequent and constant changes 
at the whim of a legislative body too often governed by passion 
and prejudice; that one of the main objects of a constitution is 
to place restrictions and limitations upon the legislative power 
and not open the door to uncertainty and oppression which too 
often follow the ill-considered legislation of partisan bodies. 

To put it in the power of the legislative assembly to place at 
their will additional qualifications, restrictions and limitations 
upon the qualifications of electors is to us a hitherto unheard of 
and monstrous doctrine, dangerous alike to the peace, good order 
and stability of a state government, un-American in its theory 
and unrepublican and undemocratic in its practice and ten- 
dency. 

The incorporation of such a provision in the constitution as 
recommended by the majority of this committee, we cannot en- 
dorse, and we candidly believe it would receive the prompt re- 
jection by Congress of the Constitution. 

In the report of the minority, we have amply provided the 
qualifications and disqualifications of electors and have fully em- 
powered the legislative assembly to enforce such provisions by 
all adequate and appropriate legislation. 

We therefore recommend the adoption of the minority report 
as a substitute for that of the majority of the committee. 

Respectfully submitted, 
George Ainslie, 
F. W. Beane, 
A. E. Mayhew." 

The CHAIR. Both reports will lie upon the table 



-The remainder of this report is taken from the Journal of the 
proceedings of this convention, (p. 117.) 



AMENDMENT OF RULE XI. 203 

and be printed. Any further reports? None. Final 
readings ? 

Gentlemen of the convention, we have finished the 
regular order of business for the day. What is your 
pleasure? 

COMMITTEE CHANGES. 

Mr. AINSLIE. I am requested by Mr. Beane to ask 
indefinite leave of absence for him, and that Judge 
Hagan be substituted as a member of the committee on 
Elections and Suffrage in his place, and Mr. King be 
substituted in Mr. Beane's place in the committee on 
Schedule. 

The CHAIR. If there is no objection to the request 
made by Mr. Beane, as presented by the gentleman from 
Boise, it will be so ordered. 

AMENDMENT OF RULE 11. 

Mr BATTEN. I desire to offer a motion. 

Secretary reads: "I move to amend Rule 11 of the 
standing rules, as follows: Amend by adding after the 
word "convention" at the end of the second line in said 
rule, the following: 'and in no case shall he be allowed 
to occupy more than fifteen minutes at any one time ex- 
cept by unanimous consent of the convention/ Batten." 

Mr. AINSLIE. I move its adoption. (Seconded.) 

Mr. REID. It lies over under the rule, one day. 

Mr. BATTEN. I gave due notice of it on yesterday. 

The CHAIR. Yes; notice was given. As I under- 
stand it, notice was given, but it has to lie over one day 
after it is offered. 

The rule relating to amendments is as follows: 
"These rules shall not be altered except after at least 
one day's notice of the intended alteration, and then only 
by a vote of the majority of those present in conven- 
tion." 

Notice of intention seems to sufficiently specify the 
nature and character of the alteration. The chair holds 
the notice is sufficient and the matter is now before the 
convention. If the gentleman from Alturas will allow 
the gentleman to make one suggestion, he could move 



204 AMENDMENT OF RULE XI. 

that after the words "by unanimous consent" the words 
"by a vote of the majority of the convention" be in- 
serted. 

Mr. REID. M. President, I oppose the resolution. As 
I understand it, its purport is to cut off debate and not 
allow but fifteen minutes. We have a standing rule that 
members shall not speak more than once or twice. Every 
gentleman who is attending this convention came here 
with a view to work expeditiously and faithfully, which 
we have done, and also to consider these matters prop- 
erly. We discuss most of them in the committee and 
report them here, but when we are laying the founda- 
tion for a -Teat state, making fundamental law, I am 
sure, while I want to shorten the session as much as 
anybody, and am as anxious to go home as anybody, 
and made as many sacrifices perhaps as any other mem- 
ber of the convention in order to attend to it and do my 
duty here, yet I think members ought to be allowed to 
discuss these matters thoroughly. Every man of us 
often has some new idea, some new phase to present, 
and if there be any one place in which there is safety 
in a multitude of counsellors, it seems to me it is when 
we are making organic law. Members are not disposed 
to speak too long. Speeches have been terse, brief and 
to the point, and I think members ought to be allowed 
discretion in that. If we find the privilege is abused, 
we can hereafter take this matter up, and I move an 
amendment that the matter lie on the table. 

Mr. BEATTY. I second the motion of the gentle- 
man from Nez Perce and object to the adoption of this 
proposition of the gentleman from Alturas. 

Mr. REID. I don't wish to cut off debate and I ask 
unanimous consent that that motion may be debatable. 
I didn't make it for the purpose of cutting off debate, 
but in order that it may lay upon the table if hereafter 
we find the privilege is abused. The gentleman can at 
any time interpose a motion and I will vote with him. 

The CHAIR. The matter may be proceeded with 
then. 



AMENDMENT OF RULE XI. 205 

Mr. MAYHEW. I move it be laid on the table to be 
Men up tomorrow evening. 

The CHAIR. Does the gentleman from Nez Perce 
accept the amendment? 

Mr. BATTEN. I do not wish to debate the motion 
offered by the gentleman from Nez Perce, but give in 
a few words my reasons for introducing this amendment 
to the rule. I have done it at the request of a number of 
the members of the convention whose business is press- 
ing and requires their attention at home. If the gen- 
tlemen will notice the rule, it will still give them 
an opportunity to speak twice on a subject, and 
probably fifteen minutes at each time. Now if an 
argument has been well considered before being 
made, it can be condensed into fifteen minutes. I dis- 
claim any desire whatever of choking off members or 
limiting them. I, for one, would be much pleased and 
highly edified to listen to some of the eloquent and per- 
suasive arguments we will have here upon the various 
subjects up for discussion; but at the same time we are 
here under great disadvantages; we are here all, or 
most of us at a sacrifice, pressing business calling us 
home. Now, why not require one and all to condense 
our arguments into short speeches, or to reduce what we 
have to say to something that is simply argumentative 
and not a mere lot of gush and twaddle and such as 
that, and it is only in this spirit I offer the rule, but it 
is liberal in its scope. If there are any gentlemen here 
who desire to use this as a nursery for political bottle- 
washers or desire to ventilate some high moral ideas, 
let them hire a hall and we will all go and listen to them. 
(Laughter and Applause.) 

Mr. BEATTY. It is largely out of consideration for 
my friend from Alturas that I oppose his motion, for I 
know how often and what trreat flights he takes into 
the empyrean when he gets into a discussion even of a 
proposition, and I don't want to see him cut off from 
debate. If debate is cut off in this way we will be de- 
prived of listening to my friend's eloquence. I have 



206 AMENDMENT OF RULE XI. 

heard him often in the past and know how eloquent he 
can become. And, Mr. Chairman, this strikes further; 
it will affect even the chairmen of the committees upon 
whose shoulders devolve often explanations of the meas- 
ures which are introduced, and would cut off the chair- 
man from thus framing the proper explanation. Now 
I think as is suggested by the distinguished member 
from Nez Perce, (Mr. Reid,) that this matter better lay 
over for a few days and see whether we are all disposed 
here to make orators of ourselves and bore the other 
members with long speeches. For one, I don't propose 
to do so, but I don't think it is time to cut off debate, 
and I do especially put in a plea for my friend from 
Alturas. 

Mr. MORGAN. I rise to a point of order. This 
motion is not debatable under the rule. 

The CHAIR. The chair sustains the point of order. 

(Question! Question!) 

The CHAIR. It is moved and seconded that Rule 11 
of the standing rules of this convention be amended as 
contained in the resolution offered by the gentleman 
from Alturas, (Mr. Batten). Pending the motion of the 
gentleman from Alturas, the motion is made that the 
same lie upon the table. (Vote) . The noes have it. 

Mr. SHOUP. I move to amend the motion by 
striking out the word "fifteen" and inserting the word 
"ten." (Seconded.) 

Mr. REID. I move to amend that and insert "five" 
as the limit of the speeches. 

Mr. MAYHEW. I move that the amendment to the 
amendment be declared out of order. 

The CHAIR. The amendment to the rules is offered 
that the word "fifteen" be stricken out and "ten" in- 
serted. To that amendment is offered the amendment 
to strike out "fifteen" and insert "five." All those in 
favor of the second amendment. (Vote.) The noes 
have it. '" :TI T1^ 

The question now recurs upon the adoption of the 
amendment of the gentleman from Custer, to strike out 



AMENDMENT OF RULE XI. 207 

the word ''fifteen" and insert "ten." (Vote.) The ayes 
seem to have it. (Division.) 

The CHAIR. Division is called for. (Rising vote 
shows ayes 28, nays 25.) 

Mr. MAYHEW. I want the ayes and nays, Mr. 
President. 

The CHAIR. The question now recurs upon the 
adoption of the original resolution as amended. Upon 
that the gentleman from Shoshone calls for the ayes 
and nays. 

Mr. MORGAN. I move that the resolution be refer- 
red to the committee on Rules. We are spending too 
much time on this thing. (Seconded.) 

The CHAIR. It has been moved and seconded that 
the resolution now before the convention be referred to 
the committee on Rules. (Vote.) The noes have it. The 
question now recurs upon the original resolution as 
amended. All in favor of the motion say aye; contrary, 
no. (Vote.) The ayes seem to have it. The resolution 
of the gentleman from Alturas is adopted. 

Mr. MAYHEW. Mr. President, I called for the ayes 
and nays. It is a right, I believe, when it is supported, 
and it was supported. 

The CHAIR. The gentleman is correct, but after 
that call another motion was offered, which I put, and 
as I understand it, the call for ayes and nays was not re- 
newed. 

Mr. MAYHEW. I didn't have time between the 
putting of the motions by the chair. (Laughter.) 

Mr. REID. Mr. President, I rise to a point of order. 
After the gentleman moved to refer it to the committee 
on Rules, the matter stood to vote upon the original 
motion as put, subject to whatever had been done and 
attached to that, as I understand, was a call for the ayes 
and nays as a second. 

The CHAIR. The reason why the matter was disre- 
garded was because it had passed out of the mind of 
the chair with regard to the call for ayes and nays. If 
there is no objection, the call will now be ordered. 



208 AMENDMENT OF RULE XI. 

A MEMBER. I object. 

Mr. REID. Mr. President, I make a point of order, 
if the gentleman is entitled to it and subject to the ob- 
jection. It was a matter of right he had, and the gentle- 
man, I maintain, under the rules cannot be cut off by 
mistake or oversight. 

A MEMBER. I rise to a point of order. 

The CHAIR. If the objection is made, I will have 
to sustain the point of order made, namely, that the 
gentleman from Shoshone is entitled to his call. 

A MEMBER. Point of order must be taken by ap- 
peal from the ruling of the chair. 

The CHAIR. The chair has seen fit to reverse its 
ruling. The secretary will call the roll. 

Mr. BEATTY. Are we voting now upon the fifteen 
or ten minute rule? 

The CHAIR. We are voting now upon the adoption 
of the resolution as amended, substituting ten minutes 
for fifteen minutes, as it was originally. 

ROLL CALL. Ayes: Ainslie, Allen, Anderson, 
Andrews, Batten, Beatty, Brigham, Campbell, Cavanah, 
Chaney, Clark, Coston, Hagan, Hammell, Hampton, 
Harkness, Harris, Hayes, Hogan, Howe, Lewis, Maxey, 
Melder, Myer, Moss, Parker, Pefley, Pierce, Pritchard, 
Savidge, Sinnott, Shoup, Standrod, Steunenberg, Taylor, 
Whitton, Woods, Mr. President, — 38. 

Nays: Armstrong, Bevan, Crutcher, Gray, Has- 
brouck, Heyburn, Jewell, King, Kinport, Lamoreaux, 
Lemp, Mayhew, Morgan, Pinkham, Poe, Reid, Salisbury, 
Sweet.— 18. 

Mr. AINSLIE. I ask leave to change my vote from 
no to aye before the vote is announced, Mr. President. 

The CHAIR. It is granted. 

The CHAIR. The resolution is adopted. 

Mr. AINSLIE. I give notice on tomorrow at the 
opening of this convention, I will move to reconsider 
the vote by which this motion was adopted. 



ARTICLE I., SECTION 7 209 

SPECIAL FINANCE COMMITTEE. 

Mr. SWEET. I desire to make a motion for the 
appointment of a special committee of three, namely, a 
committee on Finance, it being the business of this 
committee to provide, if possible, for the necessary ex- 
penses of conducting the affairs of this convention, and 
further, to pay for items of per diem and mileage, and 
I ask in making this appointment to waive the usual 
courtesy, and upon the passage of the motion, place 
ri)on that committee men who have made a success of 
raising money generally, as well for themselves as 
others. (Seconded). 

The CHAIR. It is moved and seconded that a 
special committee of three on Finance be appointed. 
(Carried). 

Mr. REID. I move the convention resolve itself into 
a committee of the Whole and proceed with the orders 

the day. 

The CHAIR. The chair will appoint as that com- 
mittee, McConnell of Latah, Mr. Harkness of Oneida, 
and Mr. Lemp of Ada county. 

Mr. MAYHEW. I move we take a recess until 2 
o'clock. (Seconded). (Vote.) Motion is lost. 

Mr. REID. I now make the motion that the con- 
vention resolve itself into a committee of the Whole for 
the purpose of proceeding with the order of the day. 
( Seconded ) . Carried. 

The CHAIR. Will the gentleman from Shoshone, 
Mr. Mayhew, take the chair? 

Article l, Section 7. 

committee of the whole. 

Mr. MAYHEW in the chair. 

Mr. REID. Mr. Chairman, when the committee 
adjourned on its last sitting, there was under consid- 
eration Section 7 on the right of trial by jury. The 
gentleman from Shoshone (Mr. Claggett,) gave notice 
that when we reached the last line, he would ask that 



210 ARTICLE I., SECTION 7 

the same principle involved in the first line control, and 
therefore this should be applied to criminal cases, only 
that he would make the majority larger — three-fourths. 
This first substitute offered by the gentleman from Sho- 
shone, (Mr. Heyburn,) provoked considerable discussion 
and is liable to provoke more. When we reach the other, 
apply this principle to criminal cases, this is likely to 
produce more discussion. Principally in more speaking 
by members of the legal profession. Now in order to 
save time and that this may be disposed of before it 
comes into the convention, and save time here, I move 
that Section 7 be referred to the committee on Judiciary. 
(Seconded). 

Mr. SWEET. Mr. Chairman, I am opposed to that 
motion. I believe in this convention adopting every sec- 
tion in the Bill of Rights and dispose of it as it comes 
to it and be done with it. (Applause). And in all 
probability, from the little experience I have had in the 
Judiciary committee, we are no more likely to agree 
there than we do here. But I believe in taking it up and 
settling it right now. 

Mr. REID. Mr. President, one other reason I will 
give for moving to send it there. It is usual and you 
will find it in most constitutions, to make a declaration 
in the Bill of Rights — that is the way it is — that is the 
title of this report, "Declaration of Rights." Here we 
have not only a declaration of rights in the first line, 
but we have also a statement of fundamental law an- 
nounced in the Bill of Rights which properly belongs in 
that article which is denominated "Judiciary Depart- 
ment." Now in order that it may save the time — that is 
the main idea, to save the time of the committee — they 
can recommend back what usually goes in this article, 
Bill of Rights, and also what part shall be cut out and 
put in the Judiciary Department proper, and they can 
agree to it there in the Judiciay committee; at least, 
we will not come into the convention with a much longer 
discussion than we had the other day. But all the gen- 
tlemen that want to discuss this are lawyers — we have 



ARTICLE I., SECTION 7 211 

fifteen or twenty of them — and all the lawyers have en- 
deavored to come in there and appear before the com- 
mittee, and any laymen will be heard afterwards there, 
so in order to save the time of the convention on the 
discussion, all these matters upon recall to that commit- 
tee come back, and when it comes back, it will hardly be 
discussed again after they agree on the report. This is 
the reason I make the motion. 

Mr. SHOUP. Mr. Chairman, if this motion prevails, 
and this section is referred to the Judiciary committee, 
it will have a contrary effect from what the gentleman 
intimates it will have of saving time. The Judiciary 
committee have not yet reported the matter assigned to 
them, and I do not believe they are any nearer reporting 
now than they were three or four days ago, and I 
think we had better decide the matter that first arises 
in the convention before anything else is referred to it. 

Mr. MORGAN. I rise to a point of order. The 
motion of the gentleman from Nez Perce is not in order. 
I think we cannot refer the article from this committee 
to another committee. 

The CHAIR. The motion is to report back to the 
convention with the recommendation that it be referred 
to the committee on Judiciary. 

Mr. REID. Yes ; that is the purport of it. 

Mr. CLAGGETT. Mr. Chairman. I hope the mo, 
tion which has been made by the gentleman from Nez 
Perce will not prevail. All these things in the end have 
got to come before and be settled by this convention. 
And this matter with regard to the preservation of the 
trial by jury, with or without any limits whatever, is a 
matter that properly belongs in the Bill of Rights. It 
has nothing whatever to do with the Judiciary committee 
or its duties and constitutes no portion of the Judiciary 
Department of the government. And I heartily agree 
with what has been said by the gentleman from Custer, 
Mr. Shoup, that if it ever goes back in the Judiciary 
committee, it will be paralyzed as we are paralyzing 



212 ARTICLE L, SECTION 7 

almost every proposition, on account of having too many 
lawyers on that committee. (Laughter and applause). 

The CHAIR. Gentlemen will keep order. This 
thing of applause in convention does not go down very 
well. Are you ready for the question? (Question! 
Question!). The question is that when this committee 
rise, it report Section 7 back to the convention and 
recommend that it be referred to the committee on Ju- 
diciary. (Vote). The motion is lost. What is the 
pleasure of the committee? I understand that when the 
committee of the House adjourned the other day, there 
was a motion pending to substitute, I believe it was Mr. 
Clark. Will you read the amendment? 

SECRETARY reads: "To amend Section 7 by 
striking out all after the word 'inviolate* in the first 
line." 

Mr. MORGAN. I offer the following substitute for 
the amendment: To amend Section 7 by inserting after 
the word "but" in the first line, the following words: 
"the legislature may provide that." 

The CHAIR. It is moved and seconded that the 
substitute for the original amendment of Section 7 be 
adopted. 

Mr. MORGAN. The section will read if this amend- 
ment is adopted as follows: "Section 7. The right of 
trial by jury shall remain inviolate, but the legislature 
may provide that in civil cases three-fourths of the jury 
may render a verdict." Mr. Chairman, this is an inno- 
vation — it is an experiment. If we put it into the funda- 
mental law of this state, we put it in a position where 
it cannot be changed until we have a new constitutional 
convention. If you permit the legislature to pass a law 
making this change in the law of this territory, if it 
wears well, the people will retain it; if it does not wear 
well, they can repeal it. If it is put into the organic 
law so that it must be — so that three-fourths of the 
jurv may give in all cases a verdict — then we can give it 
validity until we get a new constitution. I am opposed 
to very radical changes in the laws. It was said here 



ARTICLE I., SECTION 7 213 

when this matter was under discussion the other day 
that the legal profession were conservative. Mr. Chair- 
man, I believe they ought to be conservative. I believe 
it is right to be conservative, and I believe it is necessary 
that we should all be conservative in this convention 
in order to preserve the rights of the people. The gen- 
tleman will understand that I am not opposed to this 
provision; I am in favor of adopting it, but adopt it in 
such a manner that if it does not work well, we can get 
rid of it, but if we put it in the constitution, we must 
keep it there. It cannot be changed. We will have 
all the benefits of this change if we permit the legisla- 
ture to enact it. And therefore I am in favor of this 
amendment. 

Mr. BEATTY. I would like to know just how the 
section will read with that amendment. As I under- 
stand it, it will limit the legislature to making it ex- 
actly nine. 

The CHAIR. Does the gentleman desire it read? 

Mr. BEATTY. Yes, Sir. 

SECRETARY reads: "The right of trial by jury 
shall remain inviolate; but the legislature may provide 
that in civil actions three-fourths of the jury may render 
a verdict/' 

Mr. BEATTY. Mr. Chairman, I would like to ask 
the mover of this last amendment if in his opinion it 
will require the legislature to make any change, to make 
it exactly nine. 

Mr. MORGAN. I think so. 

Mr. BEATTY. I prefer it in some different shape; 
they might want to make it ten. 

Mr. MORGAN. Inserting it in the constitution as 
it is would confine it to nine, and I did not desire to 
change it. 

Mr. SHOUP. I hope the amendment will not pre- 
vail. There has been a great deal of discussion on this 
question, and if the motion is now put, we will be cut off 
from answering some of the arguments that the gentle- 
men made yesterday or the day before. Now I propose 



214 ARTICLE I., SECTION 7 

and I think this should be in the constitution so that 
the legislature cannot change it every two years one 
way or the other, just as they see fit. We have tried 
the other system for at least twenty-five years. In all 
probability we will have the opportunity to amend this 
constitution in the next twenty-five years. But I am 
willing to try it for at least ten or fifteen years. I hope 
the amendment will mot prevail. (Question). 

Mr. CLAGGETT. Mr. Chairman, I hope the con- 
vention will stand by the report, so far as it is reported 
on this subject, of the committee on Bill of Rights. So 
far as the application of this theory of the verdict of 
nine out of twelve is concerned, in civil cases, it is no 
longer an experiment. It was an experiment twenty- 
five years ago when it was first adopted in a neighboring 
state. It has since then been adopted by the empire 
state of the Pacific coast, California. It has been in 
force for nearly fifteen years and has worked in the 
right direction. For that reason 

Mr. REID. May I interrupt the gentleman? I want 
to ask him if it was not adopted in '79 in the California 
constitution ? 

In California it was, but in Nevada it was adopted 
in '65. x They never had an opportunity in California 2 
until '79 to pass upon the question, for they had no con- 
vention for the revision of their constitution. As soon 
as the people got an opportunity to have a chance at this 
thing by revising their constitution, they put it in, and 
as stated upon yesterday, it is now in and reported in 
the Montana 3 constitution and in the Dakota 4 con- 
stitution, so that it is no longer an experiment as ap- 
plied to civil cases. On the question of its application 
to criminal cases, it would be an experiment, and I, for 
one, would object to putting into the constitution a pro- 
vision of this kind with regard to criminal cases, but I 



1 — Art. 1, Sec. 3, Nevada Const. 1864. 

2 — Art. 1, Sec. 7, Cal. Const. 1879. 

3 — Art. 3, Sec. 23, Montana Const. 1889. 

4 — Art. 6, Sec. 6, South Dakota Const. 1889. 



ARTICLE I., SECTION 7 215 

do propose when this matter is disposed of, to offer an 
amendment allowing the legislature to apply it even in 
criminal cases short of capital offenses. 

Mr. HEYBURN. Mr. Chairman, some gentlemen 
seem to have a great deal of confidence in their theories 
and in experiments. I believe sometimes it is wise to 
try experiments, and I believe in a man having a reas- 
onable amount of confidence in his theories, but still it 
would seem to me that a conservative course would dic- 
tate that we should not go further than proposed by 
the gentleman from Bingham county, (Judge MORGAN) ; 
that we should not go further than to allow the legis- 
lature to make this provision if in their wisdom they see 
fit. If the legislature is called upon to act in this mat- 
ter, the question will have been before the people and 
they will come up to the hall of legislation advised in a 
measure of the sentiment of the people. This convention, 
of course, is a representative body and presumed to 
voice the sentiment of the people in a general way, but 
not upon these particular matters, especially matters 
which are radical changes upon a system that has pre- 
vailed in the territory. It has never been deemed of 
sufficient importance by the people of this territory 
heretofore, speaking through their legislature, to at- 
tempt to change this matter or to express any sentiment 
with regard to it. And it is fair to presume that the 
matter has not been very seriously considered by the 
great mass of the people, so that, if we empower the 
legislature, which will express the wishes of the peo- 
ple, to do this thng, the people will be free to exercise 
their own will in the matter. If we tie them down by 
an arbitrary provision in the constitution, that will pre- 
vent the legislature from expressing the will of the 
people, even though it may be found to be different from 
the sentiment they have heard expressed by this con- 
vention, we will have done the people an injustice. The 
system is too old to be lightly changed. I am not opposed 
to putting it within the power of the people to change it, 
but I am opposed to a body that was selected here with- 



216 ARTICLE I., SECTION 7 

out amy particular reference to this matter, taking it 
in their hands to speak for the whole people on this 
subject. Very much has been said about its application 
in our neighboring states — in the state of Nevada. I 
think if I have not read the times wrongly in Nevada 
that it is not a very safe precedent for us to follow in 
matters of this kind. The change that was made at 
the time of the adoption of the constitution in that 
state was not made in response to any demand of the 
people, but as the gentleman expressed it on the day 
before yesterday when discussing this matter, there had 
been a difficulty in securing verdicts in the courts of 
that state, and it was to obviate that difficulty. Well, 
sometimes it is difficult to secure a verdict because there 
are conscientious men on the jury who do not believe 
that a verdict should be rendered as a majority believe 
it should. I do not propose to reopen the discussion of 
that feature of this matter, because the substitute that 
is offered by the gentleman from Bingham will obviate 
the objection of the gentleman of Shoshone county, as 
he urged it — that was suggested by him, and leave it 
where it belongs, right with the people. Leave the peo- 
ple to do as they see fit, and not tie the matter up so 
that neither the people nor the legislature can express 
their wish, which may be different from that of this 
convention. 

Mr. GRAY. I am rather inclined to think, Mr. 
Chairman, that it would be better policy for us to adopt 
this amendment. As has been said here and argued at 
length, it is a radical change. In our system of juries, 
and even if it is now in this convention brought fairly 
to the views of each, still if our legislators when they 
meet would be advised by their constituency of their 
desire to have this enactment passed, it would be easy 
enough to have it done, and as has been said here, then 
when we try it, we can within a reasonable time, should 
it prove not to be as expected or as some expect, should 
it not prove to be a desirable method of practice, we 
certainly can do away with it; but as has been said by 



ARTICLE L, SECTION 7 217 

the mover of this amendment, if we get it in here and 
it does not prove to be a desirable change, we are here 
bound by it until we can have another constitution or 
an amendment to this, and we can all see how hard it 
would be, should it not prove to be what is expected by 
some, to get rid of it; and if it is desirable, we want to 
keep it, and it is easy enough to keep it then, for it is 
or in no sense can be a political question, and if once 
tried and proved desirable, I know we could keep it by 
a legislative enactment. 

Mr. SHOUP. I have listened very quietly to the 
gentlemen offering amendments to the Bill of Rights. I 
have made no strenuous objection to it so far because I 
believe that the amendments that have already been 
adopted are of very little importance. I do not consider 
that they have added any strength to the section or 
that they have taken anything from it. Yet I believe the 
gentlemen offered them in good faith, believing that 
they are necessary. I do not believe they felt like the 
venerable lady that went out after the British soldier 
with a broom, who said she only wanted the pleasure of 
showing whch side she was on — she had not expected to 
do any good or any harm. I don't think they offered 
them with any such object. Now, the gentleman from 
Nez Perce, Mr. Reid, when he offered his first amend- 
ment to this section, displayed great diplomatic skill, 
for I believe that the majority of the members of this 
convention believe that Mr. Reid was friendly to the 
section taken as a whole, but merely wished to make 
some amendment that perhaps would make it a little 
more practical or sound a little better, but would not 
vitally affect the whole amendment. But it did destroy 
all the utility there was in the amendment. It took the 
very life-blood out of it, for we all know that the 
wrongs we are trying to correct by this amendment 
could never be corrected if the gentleman's amendment 
prevailed. But the amendment of the gentleman from 
Shoshone placed the question squarely before the con- 
vention. There can be no question as to its intention 



218 ARTICLE I., SECTION 7 

and purpose to annihilate the entire section. Now the 
gentlemen have come to the conclusion that their amend- 
ment is going to be voted down and they come in now 
with another amendment to say, "Why, we don't know 
just how this section is going to work. Perhaps we 
had better leave it to the legislature; let them change it 
around one way or another as they see fit; or perhaps 
have a majority two years and then three-fourths the 
next two years, or something of that kind." Now, I 
don't think there is any danger in incorporating this 
section in the constitution just as it is embodied by 
the committee. The committee gave this section, with 
but one exception, more attention than any other section 
in the entire report and they were unanimous in report- 
ing it to the convention as it now appears. The committee 
does not represent that the report is by any means 
perfect, for we shall offer an amendment or two our- 
selves before we are through, but we do represent and 
believe that it is as nearly perfect as any section will 
be that will probably be adopted by this convention. 

Now as regards this question of leaving it to the 
legislature. Is it probable that we will have a legisla- 
ture in this territory for the next twenty years that will 
be superior to this body? Have we had a legislature 
yet in this territory that could in any way compare with 
it? The territory has never been represented as it is 
represented here today, and the reason why this should 
be in our constitution is so plain that I believe every 
business man upon this floor, notwithstanding what 
Judge Claggett said yesterday — that the majority of the 
lawyers themselves will vote for it and vote down this 
amendment. The gentleman made a great many allu- 
sions to things past — seemed to have a great deal of 
veneration for the old landmarks. Why, gentlemen, it 
would not surprise me to see them before this conven- 
tion adjourns, defend the torture rack of the Spanish 
Inquisition. Now they have called our attention to 
this, that it has been in vogue in England a long time 
and that it has done so much good there. Is that any reas- 



ARTICLE I., SECTION 7 219 

on why we should accept it without challenge? For let 
us remember that all the time this jury system has been 
in force in England, Parliament has had the damnable 
power of taking a man's life and confiscating his estate 
without accusation or trial. Gentlemen, it does not 
necesarily follow that because a thing is English that 
it is not susceptible of reform or amendment. 

inow the allusions the gentlemen have made have 
been almost entirely to criminal matters. The com- 
mittee did not propose to make any changes as regards 
criminal matters. They only referred it to civil mat- 
ters entirely, or to business matters I care nothing for all 
tnese platitudes at all; they are not speaking to the 
question, but I do not believe in the whole history of 
disputation we have heard or read of such lengthy and 
eloquent arguments being made that so little referred 
to the question under discussion. Let us suppose a 
case. Let us bring it right down to a business proposi- 
tion. We will suppose that for some reason the machin- 
ery oi the courts is not in operation. You have a dis- 
pute with your neighbor about a piece of property or 
you have an account with him of long standing and are 
not able to settle. You have repeatedly met and tried 
to settle the difficulties between you and are finally 
forced to come to the conclusion you can never agree. 
Some friend says, I would advise you to select three of 
your neighbors — good men — and let them select twelve 
of your peers and neighbors who have no business con- 
nection with you whatever and are honorable, law-abid- 
ing citizens and let these twelve men take your case 
into consideration; let them allow you to appear before 
them with counsel and witnesses. They will consider all 
that you have said and after giving the matter due con- 
sideration, then let three-fourths of them decide the 
case. Now, wouldn't any fair-minded or sensible busi- 
ness man that wanted to do what was right agree to 
such a proposition? But if a man was dishonest and 
wanted to take advantage of his neighbor, he would say, 
"No, sir. I want the whole twelve to decide this thing." 



220 ARTICLE L, SECTION 7 

The gentleman yesterday said a great deal about the 
jury system being intended to support the weak against 
the strong. 

The CHAIR. I desire to state to the gentleman, 
we will have to have some regard for the motion that 
prevailed this morning on the ten-minute rule. 

Mr. SHOUP. Has the ten minutes expired? 

The CHAIR. Yes, sir. 

Mr. REID. One moment — I am glad to hear from 
the gentleman from Custer. I will admit those of us 
who addressed this convention on this question may not 
have the wisdom that may have incited the committee 
when they brought in this Bill of Rights, and we did ap- 
proach it with diffidence and so expressed ourselves. 
I will admit further, so far as he was concerned, that 
my remarks may have been misapprehended, but I will 
not admit it to the two distinguished gentlemen who 
addressed the committee before him. I have never 
listened or read in any books on the question of the jury 
system, remarks that were more interesting and more 
to the point than especially those from the distinguished 
gentleman who opposed the position which we took. 
But I will say further, Mr. President, that any allusion 
we made to the origin of this system or to the jurispru- 
dence by which it has been governed, was at least cor- 
rect as a statement of history and fact. The gentleman 
argues this question and states that the jury system had 
its origin in England and forgets that even in the Dicas- 
teria of Athens this system prevailed. 

Mr. SHOUP. Allow me to correct the gentleman. 
I said the gentleman referred to it as being so long in 
vogue in England. 

Mr. REID. It was in vogue in England, and not 
only there, but 'way back even to the time Cadmus in- 
vented letters, almost; because in Athens we had it; we 
had it in the Comitia of Rome, by the Dane, through the 
Scandanavian the system has been improved as ex- 
perience and use suggested it, thence on down, all 
through the nations, before the Conqueror came to Eng- 



ARTICLE I., SECTION 7 221 

land; Edward the Third had it — in the states of Ger- 
many they had it; our American colonies inherited that 
great system of jurisprudence which the old world had 
adopted and which remained unchanged even when the 
people of the United States at fifteen different times 
amended their constitution. Today you cannot go into a 
federal court and try a case with a jury of less than 
twelve, because the hand that traced that constitution 
and the men who adopted it — that instrument which 
the people praise on every Fourth of July — says trial 
by jury shall remain inviolate; so you cannot try a 
case in the federal court with less than twelve unless 
you amend the constitution of the United States. The 
gentlemen have said here, and also asserted in the com- 
mittee that when this system was established, their 
important cases would no longer go to the federal jury 
and federal courts, as they go in other states. But the 
system of jurisprudence in federal courts is better than 
it is in any state court, as I have tried by experience, 
and they will have to carry their important cases there, 
so that in this territory you will have one system of 
jurisprudence, but in these jury cases, when you have 
any juries, in the mining cases, for instance, they will 
have to be tried, I believe, by this very same procedure 
you are trying to get rid of. I say, and the gentlemen 
admit, that the amendment I first offered would seem 
to make no objectionable alteration. I take it that the 
members of this convention are intelligent. My original 
amendment was, "by consent of the parties. ,, That 
not necessary, inasmuch as the act of the legisla- 
ture could have provided that, as I stated to the con- 
vention, the parties might agree to it. The gentleman's 
amendment just simply struck out all that and left it 
right where my amendment would. 

I thought there was a disposition here to adopt a 
compromise. I think the amendment of the gentleman 
from Bingham properly leaves it to the legislature. We 
did not discuss it when we were elected to come here. 
We have never had any discussion of it in this territory, 



222 ARTICLE L, SECTION 7 

as well remarked by the gentleman. Now when we 
go back to our constituents and when we place before 
them this constitution for adoption, this great question, 
this great principle of constitutional liberty will come 
up. For when you submit this constitution to them and 
discuss it before them, this question comes up, this inno- 
vation, this departure from the principles laid down by 
our fathers and preserved in the constitution of the 
United States. Let that issue be made when they send 
their representatives to the legislature; let that be made 
an issue in the campaign; then let them change it, and 
if it does not wear well, send another set of representa- 
tives and let them repeal it. But when you put it in the 
fundamental law, it is unalterable until you call this 
constitutional convention together again. I think it is 
by discussion and debate that we arrive at the best 
method of putting this matter before the people. 

Mr. BEATTY. Mr. Chairman, I am in favor, if we 
have a constitution, of putting something in it or leave 
it blank. Now the amendment of the member from 
Bingham amounts to nothing. It simply leaves it where 
it would be if we had nothing upon this subject. It 
leaves it, in my opinion, to the legislature. My opinion 
is that if we leave that section entirely out, it would still 
be left to the legislature. In other words, the amend- 
ment amounts to this — a sort of suggestion to the legis- 
lature what they ought to do. Now I am not in favor 
of a constitution of that kind. I understand the aim of 
the constitution is that we shall say there what we 
mean — that we shall not drop any suggestions to the 
legislature what they may or ought to do, but say what 
they are and what they are not to do. That is my idea 
of the constitution. Now with that view, I ask what is 
the validity, of what force is the amendment proposed 
by the gentleman of Bingham? Simply none at all, in 
my opinion. If that is the sentiment of this convention, 
this amendment should be adopted. This amendment 
would be to strike the section out entirely and leave it 
to the legislature, for that is what it amounts to. But, 



ARTICLE I., SECTION 7 223 

Mr. Chairman, I go further than that. I did not intend 
when this question came up to take any part in this de- 
bate, but my worthy friend from Shoshone intimated or 
insinuated that the members probably are in favor of 
this question. Well, I am, for one, not informed upon 
it, but I have an opinion and I seldom have opinions that 
I am afraid to express. I have the opinion that this is 
not exactly an innovation as has been said here. It is 
a matter which has been tried and successfully tried, and 
I am in favor of engrafting it in the constitution so that 
the legislatures cannot tamper with it from time to 
time — make it one session one thing and the next ses- 
sion another thing. I believe that principle has been 
so thoroughly tried that we are safe in adopting it. I 
am in favor of saying in this constitution that in civil 
cases the verdict of the jury shall be by nine men, or 
that the agreement of nine men shall constitute the ver- 
dict. Now, Mr. President, about the only argument I 
have so far heard against this position is simply the 
fact that this system has existed for a great many hun- 
dred years; that it existed in England a hundred or 
two hundred years ago ; that we have lived and prospered 
under it and therefore you must never change it. Mr. 
President, I do not concur that because a thing is old 
and venerable that therefore it is right. If our fore- 
fathers lived in log cabins, that is no reason why we 
should not live in palatial homes; or if our ancestors 
a great many hundred years ago, as naturalists tell us, 
were monkeys, that is no reason why we should persist 
in being monkeys still. If we can be men, if we can 
improve upon the past, I am in favor of doing it, and 
this question has been tried; it has been found success- 
ful. 

Now I know my time is short, Mr. Chairman, and I 
shall not go into the merits of the case, for I haven't 
the time, but I want to say right here, gentlemen, that 
this is a matter that is of more interest to the layman, 
to the business men of the country than it is to the 
lawyers. It is the lawyers who benefit by this heathen- 



224 ARTICLE I., SECTION 7 

ish system. It is by this system that we have repeated 
trials and new trials, because juries often fail to agree. 
Now then, that is an advantage to the lawyers. It is 
the people who have the litigation who are benefited 
by this change, because you get verdicts, and as has 
been before remarked, the first impulse of the jury is 
most likely to be the right one. Now gentlemen, con- 
sider a moment that this is not a matter of interest to 
attorneys to have this system engrafted. I say it is a 
matter of special interest to the laymen, to the men who 
have a case in court, to the men who have to pay the 
attorneys' fees, who have to pay the costs of litigation; 
but there are many reasons I might adduce why I think 
this system should be engrafted. I presume my time is 
up. 

The CHAIR. The gentleman has three minutes yet. 

Mr. BE ATT Y. Then I desire to say in those three 
minutes that I do not believe this is a matter that the 
people will oppose. A great deal has been said here by 
different gentlemen that we are taking away a right 
of the people — a right which the people desire. If I 
thought, Mr. President, that the people did not want 
this change, and we were not satisfied it was for their 
interest to have this change, I would not advocate 
it, but I believe the people — and I believe from my con- 
versation with them from time to time, from the ex- 
pression of their opinions, they are all tired of the jury 
system as we have it. The jury system is a good one if 
properly protected, but I tell you, sir, if we allow it to 
degenerate as it has, if we allow justice to be delayed as 
it has been by the jury trials, the jury system will go 
down. It is the common remark of all the people that 
the trial by jury is an unsafe thing. Now I am con- 
vinced that it is not the lawyers who are interested in 
this, it is the mass of the people who want the change, 
and I believe nine-tenths of the people of Idaho terri- 
tory will vote to engraft just such a provision as this 
in the constitution, and I hope, therefore, that the re- 
port of the committee upon this section will be sustained. 



ARTICLE I., SECTION 7 225 

Mr. GRAY. We have departed considerably from 
the main question. The question is : Shall we allow the 
people, through the legislature, to recommend the pas- 
sage of a law like this, or shall we engraft it where we 
have got to endure it, let it be good or bad. The gen- 
tleman from Alturas would seem to think that we must 
put it there. My idea of the constitution is not that the 
constitutional convention shall engraft all the laws in the 
constitution. 

Mr. BEATTY. Let me ask you a question. 

The CHAIR. Does the gentleman give way? 

Mr. GRAY. Yes, sir. 

Mr. BEATTY. Let me ask you, Judge Gray, what 
is the necessity of putting in these directions to the leg- 
islature as to what they may do? If you simply want to 
leave it to them, why not leave it entirely and make no 
reference to it? 

Mr. GRAY. Within the Bill of Rights there are a 
dozen things that are not yet left entirely to the legis- 
lature, and the only thing we want a Bill of Rights for 
is a little admonishment to them. It is nothing more 
than that. It is contained in all constitutions and as a 
general thing it might just as well be left out. But 
the idea is, it is to give them permission and fix it as 
to what and how much a legislature should do; if not, 
then I say, let us do away with legislatures and let 
constitutional conventions that meet for that one pur- 
pose to do all work of that kind. I am sorry I am inter- 
fering with the measure or the section of the chairman 
of the committee which reported upon this bill, but I 
am not saying that I am opposed to the proposition at 
all; I am not saying I am opposed to the trial of it, for 
I am certainly not; but I am opposed that you shall 
engraft it in this constitution in such a manner that we 
must endure it, even after trial, and suffer under it 
until we can get rid of it — several years, perhaps, before 
we can do it. And as I say, if it is good, we can keep 
it ; but the idea that we must enact a code of laws here — 
if that is what we have come for, I have certainly mis- 



226 ARTICLE I., SECTION 7 

taken the position to which I have been called to repre- 
sent the people here. We came here, I supposed, to 
draft a constitution; that is, to make general rules and 
general laws; that is, to give general directions and lay 
a foundation that is broad enough for legislative en- 
actment, and when the legislative enactments are en- 
acted from that, that they may be changed from time to 
time. Do not circumscribe them by this constitution that 
we are now attempting to frame. There is no reason, I 
say, Mr. Chairman — and if there is reason in this, we 
might just as well say how the sheriff shall serve a 
paper; how an attachment shall be issued, how they 
shall be served and how executions and judgments be 
enforced, and we might as well, gentlemen, not leave 
that to the legislature, because, as the gentleman from 
Custer would say, you can't get such a body of men as 
this. I will chance it, then, that we will get from the 
people sent here — I will chance it that they will enact 
such laws as are beneficial today. I hope the amendment 
will pass. 

Mr. HAGAN. Mr. Chairman, I am opposed to any 
interference with this section, so far as I have read it, 
as it stands. It is a singular fact that in the arguments 
of the gentlemen in favor of the retention of a jury of 
twelve that not one single reason has yet been given by 
any of them why a jury should remain twelve. Not one 
reason has been given. The reason of the opposition to 
the change is only based upon the ground of its antiquity. 
Now let us consider this in the light of the fact that we 
are seeking to change a rule for some reason. There 
is no sacredness that hangs around or that hedges itself 
around a jury of twelve, any more than a jury of twenty 
or twenty-five. If there are reasons why a unanimous 
verdict of twelve should be given, let us hear them. Is 
there a constitutional right? Only the right of trial by 
jury. We have been referred to the fact of the English 
jury. We have no jury system as it exists in England, 
only in one respect, and that was the reference the gen- 
tleman unfortunately made to the practice in the United 



ARTICLE I., SECTION 7 227 

States courts. There, sir, he says that he took his im- 
portant cases; when the Judge upon the bench can do 
that to which he refers — instruct the jury to arise, and 
tell them what to decide or tell them how to find their 
verdict — that is not a trial by jury. We have in the 
United States practically kept, I say, (the gentleman is 
correct about it) many of the old abrogated features of the 
common law jury, which I do not propose, so far as I 
am concerned, will be contained in the constitution of 
this state. But no reasons have been given why the 
system of twelve as it has grown up around us should 
be retained and that the unanimous verdict should be the 
rule. But they argue that it is old. Coming back to 
the same proposition upon which the friends of this 
measure stand, and that is that three-fourths should 
render a verdict and that trial by jury should be invio- 
late, and we meet them on that proposition and agree 
with them. It would be useless to put that word in 
because the right of trial by jury is guaranteed by a 
constitution that is higher than the one which we shall 
make, and upon which we cannot infringe. But the 
reason is this: That the friends of this measure be- 
lieve that we observe in our every-day practice as law- 
yers — and merchants and business men have no doubt 
observed more keenly, that it is not as has been claimed 
by the honorable gentlemen upon the other side, a pro- 
tection of the weak; but it is used, Sir, as a measure 
to oppress the weak. Why, Sir, if the weak is in litiga- 
tion against the strong, how usual it is for the strong 
one to get one man out of the twelve. But I believe that 
in the ordinary twelve jurymen, when you have it so 
that three-fourths may render a verdict, there is no man 
rich enough to buy one-half of an American jury. They 
are too numerous. And the poor man and the weak 
woman in the courts say, "You may oppress me by get- 
ting one, but you cannot rob me of the nine; under the 
present system you may rob me of one, but leave me 
eleven, and hang the jury and there is no trial. I am 
oppressed; T am in litigation, and the expenses are 



228 ARTICLE L, SECTION 7 

heaped upon me until I wish I was out of court and 
give you all for which I am contending. " I have seen 
that too often, Sir. I have seen it too often, where men 
save themselves in cases by being able to hang the jury 
by getting one man. I want that man, if he is in the 
business of hanging juries, to be compelled to get four, 
and I don't believe they can do it. I believe the ends 
substantially of justice will be meted out to litigants, 
and that is the only reason why I advocate this in civil 
cases. Because my observation teaches me that I ought 
to give this law to the people, in its organic sense, too, 
and not tell the people to go to the legislature and ask 
them. But what is the use to tell the legslature that 
they can do this in the future? The constitution we 
are making is mandatory and prohibitory. We will 
compel them to observe, as we do in this Bill of Rights, 
the inalienable rights we give them. Legislatures can- 
not take it away. Nor do we propose, nor do I propose, 
so far as I am concerned, to consent and allow legislative 
bodies to pass upon something I consider of such vast 
importance to the people that it should be engrafted in 
the organic law of the land. 

Now the English judges have their juries; at the 
same time they can compel a verdict. They have a 
right, when a man is tried for his life or liberty, to tell 
them how to decide. Of course, he can't make them, 
but we know how they operate. We haven't it here. 
The judge has no right here to instruct a jury how to 
decide. He instructs them upon the law and lets the 
facts stay with them. The facts being with them, I 
think in civil cases that the jury should have the right — 
three-fourths of them — to determine between man and 
man the rights at issue, their property rights, the rights 
of every-day litigation, so that litigation can go on, if 
men want to litigate, and be decided. We have the 
course of the wheels of justice in this territory, it ap- 
pears, clogged. We have the calendars over-burdened 
with cases, most of which are jury cases, because our 
very code provides we shall have trial by jury in all 



ARTICLE L, SECTION 7 229 

law cases, and those law cases, my experience has been, 
can be treated more promptly, equally as successfully 
and equally productive of justice to the parties by hav- 
ing three-fourths of that jury decide the cases. I am 
not in love with any part of the system — the jury sys- 
tem; I am not in love with the system that has come 
down to me from hoary antiquity, that would allow a 
peer or a baron of England to shoot down a man and 
then upon a trial by his peers be secure, at the same time 
living under a law that would brand a starving woman 
for stealing a loaf of bread to give to her children. I 
don't believe in these old antiquities — I don't believe 
much in the old hoary antiquities of common law, either. 
I know that the right of trial by jury, for habeas corpus, 
was wrung from an unwilling king away back on the 
Plains of Runnymede. I know the kings of England 
have been trying ever since to thwart the will of the 
people as far as they can, so far as liberty under the 
constitution is concerned. I do not believe in this sys- 
tem which was a portion of that system that caused 
our forefathers to rebel, as is the case with a good 
many other landmarks hoary antiquity brought down 
to us. Many are the crimes under the guise of common 
law that were perpetrated upon a people that were help- 
less under the rules of its necessities. Nor is this the 
reason that I am against the twelve; but my only reason 
is that my experience has taught me that justice would 
be meted out more unerringly, more promptly and in a 
better manner in civil cases if two-thirds of the jury 
should decide the issues and render their verdict on that 
vote. 

Mr. POE. When we say "The right of trial by 
jury shall be held inviolate," I take it that we mean 
something, and that is that every person whose life, 
liberty and property are about to be taken away from 
him, before that is done, he shall be entitled to a trial 
by jury. Now what is a trial by jury, is the question, 
under the constitution of the United States and the pre- 
cedents that we have — is what this convention is to de- 



230 ARTICLE I., SECTION 7 

xermine. I am not like the gentleman who has just ad- 
dressed you; I have a great deal of respect for the 
wisdom of our fathers, but I think in the consideration 
of this matter that we ought to give some consideration 
in relation to that matter, and should here consider what 
was intended by the framers of the constitution of the 
United States when they said that every person should 
be entitled to a trial by jury. Now, the only way we 
can determine that and as to what the very spirit and 
letter was, is to see what their practice has been under 
that law. We find that the jury trial is a system hoary 
with age. Mr. Claggett referred to the fact that at 
one time it was composed of 23 men; that a bare ma- 
jority was all that was required to render a verdict. 
Now the gentleman will at once see that that was a 
cumbersome body and larger than was necessary, but 
that notwithstanding the largeness of that body it 
could be agreed that the majority should consist of 
twelve men all the time. It required twelve to make a 
majority of that jury as it then existed, and in the wis- 
dom of our fathers they saw proper to do away with the 
surplusage of eleven, and leave to twelve intelligent men 
the decision of the question before the court, and there- 
fore they adopted the number of twelve under the old com- 
mon law. So it came down to you under their practice; 
that system of jurisprudence was adopted in the United 
States; the common law of England was the law of the 
land. We knew no other law, and under that law all of 
our proceedings were had. We were governed by that 
law, and even today, by the statute of this territory, in 
the absence of any legislation upon any particular ques- 
tion, the legislature has declared that the common law of 
England is today the law of the land. 

Mr. HAGAN. Will the gentleman allow me to ask 
him a question? 

Mr. POE. Yes. 

Mr. HAGAN. I understood the gentleman to say 
that the United States statutes fixed the jury at twelve. 

Mr. POE. No sir, I never said it 



ARTICLE L, SECTION 7 231 

Mr. HAGAN. What law then did? 

Mr. POE. The law of custom and the common law, 
and the practice of the people under that law. We find 
that under the practice of every state, or nearly so, until 
within a few years, the rule has been that when a man 
demanded a jury, it was considered a right that he had 
to a jury trial by twelve men. I say that that was the 
spirit and intention of the framers of the constitution 
of the United States, when they said that every man 
whose life, liberty or property was to be interfered with 
or taken away from him — before that could be done he 
should be entitled to a trial by jury. I say that having 
adopted twelve as the number which constituted a jury, 
that therefore by custom, by long-continued acquiescence, 
they intended that the jury should be composed of twelve 
men. Now I do not desire to take up the time of this 
convention at any length, but I cannot conceive of any 
reason why the gentlemen who are in favor of this inno- 
vation, who are in favor of this change — they say they 
are here to represent the people, that the people are 
the rulers of the country, and that they are ready to bow 
to whatever the people may demand. Now they do 
not come here with any instruction. They come here 
simply for the purpose of framing a constitution that 
is republican in form, and putting the necessary safe- 
guards around it so as to give it the proper force and ef- 
fect. They come here not to make an innovation ; they come 
here to make that kind of a constitution and no other, 
not to make a change; and I say if the gentlemen are 
sincere as to the matter, in their expression of willing- 
ness to leave this to the people, then let them simply 
say that the legislature shall, as this amendment directs, 
have the power at any time to declare that in civil cases 
a jury shall be a less number than twelve. We will go 
before the people with that slight innovation, and we 
will say to them: "Gentlemen, elect your men upon 
that issue; if you want that change made, make it 
when you go to the legislature; if you do not want it 
made, then instruct us; but we will not engraft it into 



232 ARTICLE L, SECTION 7 

the constitution. I say it is nothing but right and it is 
nothing but just; if the system is good then we can re- 
tain it for a time; if it is bad we have an opportunity 
to change it. It will require a long time, trouble and 
expense to hold another constitutional convention or an 
election for the purpose of changing the constitution 
itself. 

I have a great deal of regard for the wisdom of 
the past, notwithstanding the remarks of the gentleman 
to the contrary. When I behold the wisdom that has 
been manifested by our statesmen of the past I bow 
with humble reverence to that wisdom. But I am not 
one of those who is of the opinion that the world is 
growing physically weaker but mentally stronger. I 
find giants in the days of the past that equal anything 
I find in the days of the present. And I say that we 
should not with lightness pass over or by that wisdom 
that has been displayed in the past. I will wind up by 
saying that we should not be ashamed today of what 
our fathers have done, nor to tread the paths our 
fathers have trod. 

Question. 

Mr. MORGAN. I will not take the time of the con- 
vention but a few minutes. I wish to say this: That 
Nevada has been held up to us as having adopted this 
system. I have only to say that since she adopted this 
system she has run down until she is so weak that she 
cannot stand alone. She has been trying for four years 
to steal a large part of this territory to 

Mr. CLAGGETT. Does the gentleman claim that 
she has run down because of this system? 

Mr. MORGAN. I don't know (Laughter), I don't 
know, Mr. Chairman, whether she has run down because 
of this system or not, but I know this, that since she has 
adopted this system she has run down until she has only 
ten thousand voters, and has been trying for four years 
to steal two-thirds of this territory. Now she is not 
able to stand alone, and has not population today suffi- 
cient to make half a state. If she were a territory 



ARTICLE I., SECTION 7 233 

she could not be admitted. They point us to the Cali- 
fornia constitution that was adopted by the Dennis 
Kearney and sand-lot fools. Mr. Chairman, I don't 
want to follow the lead of such constitutions as those 
nor such men as those. They tell us there is a differ- 
ence, that the laymen ought to be in favor of this. Mr. 
Chairman, this convention don't know any difference be- 
tween the interests of laymen and the interests of law- 
yers; we all have interests to protect. If we submit to 
one innovation today, we may have another proposed 
tomorrow. For myself, gentlemen, I think we ought to 
be careful. I think we ought to be careful and not throw 
away the old landmarks that have come down to us. 
They tell us we should not keep these things because 
they are old. Why is it that we have this library, Sir, 
here in this building? Simply that we may have the 
crystalized genius of the past, of the greatest men the 
world has ever produced, before us, so that we can fol- 
low in the precedents they have laid down for us. It is 
safe to follow precedents that are good. I hope 
gentlemen, inasmuch as you have everything we want 
or any of us stand for in this amendment — I hope it 
will be adopted, to leave it to the legislature to provide 
that a three-fourths verdict may be received. Gentle- 
men, I thank you. 

Mr. AINSLIE. I move thtat the committee rise, 
report progress and ask leave to sit again. (Seconded). 
Motion is put and declared lost. 

Cries of "Question!" 

Mr. REID. I want to give notice that I desire to 
call the ayes and nays in the convention on this amend- 
ment. 

The CHAIR. You can give notice there, but we can- 
not entertain any notice here. 

Mr. REID. Notice has got to be given, unless you 
want to be cut off. 

The CHAIR. Perhaps it has, but I am no parlia- 
mentarian. (Laughter). 

SECRETARY reads Morgan's amendment: "To 



234 ARTICLE I., SECTION 7 

amend Sec. 7 by inserting after the word "but" in the 
first line the following words: 'the legislature may pro- 
vide that/ so as to read, 'The right of trial by jury shall 
remain inviolate, but the legislature may provide that 
in civil cases three-fourths of the jury may render a ver- 
dict/ " 

Cries of "Question!" (Vote.) 

The CHAIR. The noes have it. (Cries of "Divis- 
ion!"). A division is called for. (Rising vote). Eleven 
in the affirmative. Those opposed rise. The motion is 
lost. 

Mr. CLAGGETT. Mr. Chairman, I move that the 
committee do now take a recess until two o'clock. 

The CHAIR. The motion is out of order, unless put 
that the committee rise. 

Mr. CLAGGETT. That the committee now rise and 
take a recess. 

The CHAIR. The house does rise if the committee 
goes into convention. 

Mr. CLAGGETT. Any way to make it. 

The CHAIR. (Vote). The ayes have it. The com 
mittee will now rise. 

CONVENTION IN SESSION. 

Mr. PRESIDENT in the chair. 

Mr. MAYHEW. Mr. President, the committee of 
the Whole having had under consideration the Bill of 
Rights, hereby reports progress and asks leave to sit 
again. 

The CHAIR. The motion is, shall the committee be 
given leave to sit again. (Vote). It is carried. 

A MEMBER. I move a recess until three o'clock. 

(Calls of "Two o'clock.") 

A MEMBER. I move an amendment to two o'clock. 
(Seconded). 

Mr. HARRIS. I move to amend that by making it 
half past two. 

The CHAIR. (Vote). The chair is in doubt. All 
those in favor of taking a recess until half past two 
will rise. 



ARTICLE I., SECTION 7 235 

The SECRETARY. Thirty-eight, Mr. President. 
The CHAIR. Gentlemen, the motion prevails; the 
convention takes a recess until 2:30. 

AFTERNOON SESSION. 

Convention called to order at half past two by the 
president. 

The CHAIR. What is the pleasure of the conven- 
tion ? 

Mr. HARRIS. I move that the convention go into 
committee of the Whole for the purpose of further con- 
sidering the Bill of Rights. (Seconded). 

Mr. BEATTY. I suggest that the motion be ex- 
tended also to any other reports that have been made, 
if we get through the Bill of Rights. 

Mr. HAGAN. In the general order. 

The CHAIR. For the purpose of considering the 
general orders upon the calendar. (Motion put and 
carried) . 

The CHAIR. Will the gentleman from Shoshone 
take the chair? 

COMMITTEE OF THE WHOLE IN SESSION. 

Mr. MAYHEW in the chair. 

Article I., Section 7. 

Mr. CLAGGETT. Mr. Chairman, I offer the fol- 
lowing amendment to Section 7. 

SECRETARY reads: Insert after word "verdict" in 
the second line of Section 7, the following: "And the 
legislature may provide that in all criminal actions, ex- 
cept for capital offenses, five-sixths of the jury may ren- 
der a verdict." 

Mr. BEATTY. I second the motion, Mr. Chairman. 

Mr. CLAGGETT. Mr. Chairman, I do not propose 
to add much to what has been said in this discussion 
with regard to civil cases in this connection. The reason 
which moved the consideration of the convention by 
so large a vote to leave this clause with reference to a 
verdict of three-fourths in civil cases, I take it applies 
with equal if not greater force to criminal actions. 
Nevertheless, I would have been unwilling, inasmuch as 



236 ARTICLE L, SECTION 7 

this matter has never been tried, although my own 
judgment as to how it will operate is entirely clear — I 
would be unwilling to incorporate in the constitution as 
a part of the organic law of the state a compulsory pro- 
vision to this effect, and therefore in offering this amend- 
ment, I have limited it to the discretion of the legis- 
lature. And limited it also to ordinary cases of mis- 
demeanor and felony, excluding from the operation of 
it, and placing it beyond the control of the legislature 
itself — only capital cases where the punishment is 
death. We all know as a matter of public history that 
it is upon the criminal side of our courts where the 
administration of the law as a rule is the most defect- 
ive — where justice is most uncertain, not only as against 
the party charged with crime, but also in his favor very 
frequently. We all are aware of cases within our own 
knowledge where men who clearly had committed no- 
crime whatever have been reduced to poverty by having 
one or more jurors drawn upon the panel which tried 
them, who would insist upon hanging the jury in favor 
of guilt, out of some personal spite either to the de- 
fendant himself or to some particular cause which he 
represents, or to some particular party to which he 
belongs or order of which he is a member. Generally, 
however, the difficulty arises in consequence of the 
hanging of the jury by one or two (scarcely ever by 
three) for improper motives where there has been some 
kind of influence bought to bear. The law, out of 
tenderness to liberty and life, gives to the accused 
double the number of peremptory challenges it gives to 
the prosecution. No one finds fault with that. It also 
gives to him the benefit of every presumption arising 
upon the facts of the case with reference to a reason- 
able doubt — not only with reference to 'a reasonable 
doubt as applied to the entire case, but with reference 
to reasonable doubt upon any one fact which is neces- 
sary as a link in the chain of evidence to secure con- 
viction. And many advantages upon the introduction 
of evidence are given to the defendant in case of wrong 



ARTICLE L, SECTION 7 237 

interpretation of the law by the court, resulting in 
judgment of acquittal. Nevertheless, although the 
court may have compelled a particular construction of 
the law (I prefer to use that term) nevertheless, when 
once the verdict of acquittal has been rendered, he 
may not again be placed in jeopardy of life or limb or 
liberty. I might enumerate here a dozen other advan- 
tages which the criminal or alleged criminal has, and 
if on top of that you give him the further advantage, 
if you double the number of peremptory challenges al- 
lowed to him over and above the prosecution, you give 
to the defendant such a series of advantages as prac- 
tically to destroy the administration of justice. For 
that reason I think repeatedly juries will be hung by 
one juror or by two jurors, and then comes a second 
trial and an enormous expense to the treasury, the 
same result nearly always following the prosecution 
where the man placed upon trial is a prominent man 
or one who has a large number of friends or one who 
can largely influence public opinion, either through the 
press in or any other way. And on a third trial and 
a hung jury, the practice almost having the force and 
effect of law, is that the district attorney must enter a 
nolle pros and dismiss the prosecution, and yet, counting 
all these jury trials, there may not have been one atom of 
doubt as to the question of the man's guilt, not seldom 
wearing out the state by reason of these repeated trials 
and repeated failures. Not for the purpose of calling at- 
tention to the necessity of something of this kind being 
done, because that matter of necessity is known to all, 
and not because there is anything new in the whole 
matter which I shall read to the convention, because 
daily when you take up your public prints over all parts 
of the United States, you see the same thing — there is 
nothing new about it, but for one other purpose which I 
will disclose hereafter, I will read the following extract 
taken from the Shoshone county newspaper which takes 
it from a Portland, Oregon, paper. The Portland pa- 



238 ARTICLE L, SECTION 7 

pers are giving the jury system as it now stands severe 
blows because justice was thwarted in the Olds case by 
the usual insignificant minority. The Portland Journal 
of Commerce comments as follows: 

"The non-conviction of Olds for the gory murder of 
one of his gambling fraternity, after the most con- 
vincing evidence on the part of the prosecution, has 
caused many to question the motives which prevented 
the minority of the jury from securing justice for the 
foul crime. It is suggested that the system requiring 
unanimous verdict of the jurors be suspended for the 
more sensible method — the Scotch method — a majority 
alone being necessary to decide a trial. If this quali- 
fication were adopted, so many re-trials would not take 
place, corruption would not so easily influence jurors 
without conscience. The Olds trial has set many re- 
spectable men pondering over the laxity that exists in 
some branches of our municipal government, and the 
sooner reform sets in, the better." 

I have read that extract, Mr. Chairman, not for the 
purpose of, as I said before, pointing out an exceptional 
case at all, because these cases are so common, happen- 
ing so every day, and the newspapers are so filthy that 
our ears have become so accustomed to them that it 
makes no impression upon us any more. But for the 
purpose of calling attention to the fact which is here 
specified and which was omitted to be spoken of upon 
the debates on this question when it was up before. 
In Scotland where the administration of justice 13 as 
good as can be found anywhere upon the face of the 
earth, even in capital cases the majority of the jury 
decide. This idea with regard to the sanctity of the 
trial by jury is the old English system. They have 
never had it in Scotland. Scotch law still prevails as 
it existed at the time of the final union of Scotland 
with the British crown in the reign of James the First 
wherein the bare majority decides, but to show the sa- 
gacity of the Scotch law, they provide not only for a 
verdict of guilty or not guilty, but they have a third 



ARTICLE I., SECTION 7 239 

verdict which ought to be incorporated in the statutes 
of every state, and that is a verdict of "not proven." 
If the man is shown to be innocent, he goes entirely ac- 
quitted of any moral blame; if he is guilty, he is pun- 
ished; but if in consequence of checks of the law in any 
way or the failure to produce legal evidence, although 
there may be a moral certainty of his guilt, he is not 
allowed to go out in the community and say, "I have had 
this accusation swept entirely away from me," but he 
stands there with the stigma attached upon him. To 
cover a case of that kind they have another species of 
procedure by which in case of subsequently discovered 
evidence that taint may be removed upon application 
of the party upon whom it has been left. This is 
what I call the most advanced system known anywhere 
*~ng civilized men in which the institution of the 
trial by jury has been preserved. I do not in this 
amendment ask to have a majority. I would be un- 
willing myself to do so. I wish to make haste and pro- 
gress. We each wish to do it slowly, safely and secure- 
ly. I don't want to stand still and do nothing; neither 
do I want to run too fast. I want to put it in the power 
of the legislature in cases non-capital to require or to 
provide that a verdict of five-sixths or ten-twelfths 
may be sufficient either to convict or to acquit. 

Mr. HAGAN. While I am in favor, Sir, in civil 
actions of allowing three-fourths of the jury to settle 
questions at issue, I am not prepared to say that the 
liberty of a party shall be jeopardized by a vote of 
five-sixths or three-fourths of any jury. It is a ques- 
tion most serious, and I have my doubts about the 
power of this convention to put this in the constitution. 
It has never been denied under the constitution of the 
United States and in a capital offense or offense where 
the punishment is imprisonment for life, that you can- 
not take away from the party the unanimous verdict of 
the jury. And I oppose this amendment for the same 
reason that I am in favor of a three-fourths rule in 
civil cases, and I appeal to the convention for the same 



240 ARTICLE I., SECTION 7 

reason — I appeal upon the ground of the weak against 
the strong. I appeal in the face of the fact that in civil 
cases we can protect the weak against the strong by 
a three-fourths verdict, but in criminal cases we cannot 
protect the weak against prosecution unless by unani- 
mous verdict. Every man who is arraigned under this 
amendment for a crime the punishment of which is 
imprisonment for life, which is worse than death — five- 
sixths of the jury or less than the whole number can 
consign that man to imprisonment for life. I do not 
believe in a criminal case we should touch one single 
hair of his head, around whom the safeguards -of the 
constitution have always been placed — that he should be 
convicted without a unanimous verdict of his country- 
men. I draw the line when it comes to criminal prose- 
cution. The state has so many challenges — every state 
gives to the defendant challenges, but he cannot be pro- 
tected except by unanimous verdict. For the same reason 
that I am in favor unqualifiedly of a clause in this consti- 
tution allowing three-fourths in civil cases to protect the 
weak against the strong, for that very reason I am in 
favor of unanimous verdict in criminal cases. I do not 
propose that the prosecution against the weak, defense- 
less man shall be heard in any court without every 
safeguard which the constitution can give him being 
thrown around him. I do not go upon the question of 
antiquity or anything of that kind, but upon the broad 
proposition that it is the policy of the law, the policy 
of each jury to whom that question is submitted, that 
they as a jury in a body unanimously shall determine 
this man's guilt or innocence. Under this amendment 
you can consign a man to the penitentiary for life for 
murder in the second degree — consign him with five- 
sixths of the jury on any prosecution. It will apply all 
the way down to criminal offenses. I wish this after- 
noon, so far as I am concerned, to draw the line in this 
age of progress and intelligence, between civil and 
criminal cases. I do not believe in the waiver. The 
supreme court of the United States has decided that a 



ARTICLE L, SECTION 7 241 

man cannot waive a jury in criminal cases even if he 
wishes to do it. The state of New York in the case of 
Cancemi v. People 1 decided he could not waive a jury 
in a misdemeanor, and over two years ago the Supreme 
Court of the United States decided in a case from 
Tennessee that you could not waive a jury. If you 
cannot waive a jury even in a misdemeanor, which I 
think is right, I do not believe in applying this rule to 
criminal cases of the country. I do not believe in try- 
ing a man for a crime unless he is protected by every 
safeguard the law can throw around him — every chal- 
lenge, every investigation by which we can arrive at 
the conclusion of his guilt or innocence. We cannot 
arrive at it unless we claim the unanimous verdict of 
the jury. I am opposed to it Mr. Chairman. I am in 
favor of three-fourths in civil cases, but I am opposed 
to it in all criminal cases of whatever kind or nature. 

Mr. POE. Mr. Chairman, I think it is about time 
that we called a halt in this matter of innovations. 
The gentleman advocating the three-fourths verdict in 
civil cases, had some precedent, true, with some states 
that had adopted that rule, but I defy the gentleman 
to point out to this convention one solitary state which 
had dared to go to the extent that he has asked this 
convention to do. Mr. Chairman, are we to jeopardize 
this constitution by getting something into it which no 
other constitution has ever dreamed or dared to do, 
and present it to Congress among those old common 
law attorneys who are wedded by education to the old- 
time practice which has been in vogue from time im- 
memorial, that no man shall be deprived of his life, 
liberty or property without a trial by twelve of his 
peers? We admit that states have changed that in 
civil cases; we have seen proper to follow in their 
footsteps and make the innovation on the old principle 
that they have made, but now the learned member asks 
us to go further and to absolutely jeopardize the prob- 



1 — 18 N. Y. 128. 



242 ARTICLE I., SECTION 7 

ability and, in my opinion, I believe the possibility of 
the adoption of this constitution by Congress. And 
therefore upon policy, upon expediency I do not think 
it is wise for us to assume a greater knowledge than 
those who have gone before us have displayed. I am 
unalterably opposed to taking away that safeguard 
from any living human being, to-wit, a trial by twelve 
of his peers when he is accused of a crime the penalty 
of which will incarcerate him in a prison cell. I say, 
we should pause and consider well a matter of this 
kind which takes any safeguard away from the citizen. 
It is a maxim of law that it is better that ninety-nine 
guilty men should go unpunished than that one should 
suffer for a crime of which he is not guilty. Under 
the present safeguard of unanimous verdict of twelve 
men. Mr. Speaker and gentlemen, I appeal to you in 
your magnanimity to consider the many thousands who 
have suffered ignominious death upon the scaffold or 
who have eked out a miserable existence in the prison 
cell. Notwithstanding that fact, yet innocent men have 
suffered. Now, shall we put it within the pale of pos- 
sibilities or of the reach of the court or any process of 
law that will make it more likely for the innocent to 
suffer than already exists? I think this convention will 
not go to that extent. And I most emphatically pro- 
test against it — upon the principle of its being wrong, 
and upon the further principle that it is not expedient 
for us to assume a greater knowledge than all the 
statesmen who have preceded us. 

Mr. BEATTY. I shall not make a lengthy speech 
nor attempt to make a speech, but I have a few sug- 
gestions to make. We still hear the old cry that this is 
an innovation. Now if the committee will look at that 
amendment, it is not incorporatng anything in the 
constitution that is binding us; it is simply leaving it 
to the legislature in their wisdom of the future to make 
this change if it shall be deemed wise. And I think it 
is wise to leave that door open that the legislature may 
enact the law that it thinks best. Now, if it is impor- 



ARTICLE L, SECTION 7 243 

tant to allow three-fourths of the jury in a civil case 
to find a verdict, I think it is equally important to have 
the same in criminal cases. The best of jurists say this, 
that the way to prevent crime is to make punishment 
certain. We all know that punishment is uncertain, 
by the practice we have had. Now all good citizens 
simply want the guilty punished; they do not ask any- 
thing else than that, but that much they do ask, and I 
think that if we have the punishment made certan, that it 
would restrain crime much more certainly than a severe 
punishment. The result of our present system is, as 
we all know — it is not Accessary to cite examples — we 
all know that in half the cases criminals go unpunished 
simply by the jury failing to agree. Now let us make 
some provision by which that punishment can be cer- 
tain, and I claim that the amount of crime will be 
greatly reduced. But there is one other suggestion and 
then I leave the matter. It is said that this will greatly 
injure the safety of the citizen. Why, gentlemen, we 
forget one item. Suppose this jury shall make a mis- 
take; suppose that it is left to ten jurymen and that a 
mistake should be made; there is still a resort for the 
innocent man. That matter still is subject to the 
ruling of the judge; that verdict may be set aside upon 
proper ,motion if the evidence is insufficient. Now 
there is a bulwark that the citizen can always fall back 
upon, and there is little danger of the judge allowing 
an innocent man to be punished when the evidence 
shows he is innocent. The danger is not great. We 
are not taking away the safety of the citizen by any 
means in allowing the legislature to adopt such a 
measure as this. Of course, if the amendment of Judge 
Claggett was to absolutely adopt this into the con- 
stitution, it would be a different matter. I prefer it 
left open so that future legislatures may, if in their 
wisdom it is deemed best and it becomes the sense of 
the community, have the power to incorporate it, and 
that is all this provision claims. It does not provide 
absolute insertion of that principle in the constitution. 



244 ARTICLE L, SECTION 7 

Mr. HAGAN. May I ask the gentleman a question 
before he sits down? Hasn't the Supreme Court of the 
United States decided you could not be limited upon a 
criminal case, where the accusation is for an infamous 
crime, to less than a unanimous verdict? 

Mr. BE ATT Y. How is that? 

Mr. HAGAN. Hasn't the Supreme Court of the 
United States decided that no state law can be passed 
where the verdict is rendered in a case where the party 
is charged with an infamous crime without unanimous 
verdict? 

Mr. BEATTY. I don't remember a decision of that 
kind, and if there be such a decision, future legislatures 
will have the opportunity of examining that, and if 
that is the law, if there is such a decision as that, they 
need not enact this law; but I remember no such de- 
cision. 

Mr. HAGAN. Do you know of any provision in the 
constitution of the United States that gives the right 
of trial by jury by less than unanimous verdict in any 
state of the Union for an infamous crime? 

Mr. BEATTY. I know of no special provision in 
the constitution of the United States making a different 
rule applicable to criminal cases than civil cases, and 
if there is a provision which prevents anything than 
an unanimous verdict, then we cannot adopt the pro- 
vision which my friend votes for to allow three-fourths 
verdict in civil cases. I know of no distinction between 
the two, from my recollection of the constitution now. 

Mr. GRAY. I certainly fail to see the consistency 
of the gentleman of Alturas. He was not willing to 
allow the legislature to pass upon matters of property 
and consider what would be a correct jury in civil 
actions. But now he seems willing that in criminal 
cases, — a much more serious matter — he is willing that 
the legislature may have control of matters of that 
kind. If they know what is a competent jury in a 
criminal case, they certainly should be competent to 
know what was in a civil case. But that seems not to 



ARTICLE I., SECTION 7 245 

be his opinion, and I say, and say emphatically that 
such an innovation as this I hate to go out from this 
convention, for I think it is unexampled in any country 
or any state. I never knew of such a thing and I hope 
we will not go to Congress with a constitution which the 
constitution of the United States itself would not war- 
rant. I hope the United States will not have to come 
to us to learn what should be a proper law or a proper 
jury in a criminal action. He says we trust to judges, 
that we may have that resort. I say that perhaps 
may be better and it may not be better. It is almost 
taking away from the criminal that charity which is 
extended to him by the law of presumption of inno- 
cence. I have seen communities when a poor, unfor- 
tunate man has been indicted and brought before the 
court, and from the reading of the indictment five- 
sixths of that community would have hung him then 
without a bit of evidence further than reading the 
indictment, and I say when we let loose of one single 
thing in the present system, we do that. We have no 
right to do it under the law and, I claim it, of the 
United States, and I do believe it is such an innovation 
that I should dreadfully hate to see it go out. I am not 
finding fault with what was done this morning; I am in 
favor of trying a three-fourths jury in civil actions, but 
the method of geting at it, I do not approve of, as it 
was done by the convention this morning. I want that 
tried by legislative enactment, but I cannot see the 
consistency of saying let the legislature do it in 
criminal cases — which are far more important to the 
life and liberty of the citizen — and in civil cases we 
won't trust them. They say that this is a better, a 
nobler, and an abler body than can be got together 
in the legislature. If so, pass upon this important 
thing now, — not let them go to the legislature. I can- 
not see the consistency of that, Mr. Chairman, and I 
hope that we will consider this candidly enough and 
think quietly enough on it to vote it down; it is such 
an innovation that it is not warrantable anywhere. 



246 ARTICLE I., SECTION 7 

Mr. REID. I desire to make one statement. Mr. 
Merriam, the jurist, in collecting a line of authorities 
on this subject, announces this statement as expressing 
what he has discovered in his researches, and he cites 
at least twenty or thirty decisions; "Such legislation," 
— that is, for the trial of a criminal case with less than 
twelve, — "is obnoxious to the familiar constitutional 
provision preserving the right of trial by jury in- 
violate. 1 That has been decided in a number of 
cases, among others in the case mentioned by Mr. 
Hagan. 

Mr. CLAGGETT. I do not want our friends on the 
other side of this question to befog this question on 
legal or constitutional propositions, and they shall not 
do it, if I can help it. It is said that as matters now 
stand Congress cannot pass a law, because it is for- 
bidden to do so by its constitution — or the constitution of 
the United States — which guarantees a verdict of 
twelve 

Mr. POE. Let me ask you a question. 

Mr. CLAGGETT. In a moment. But it is true that 
there is not another state in the Union, so far as I 
know, which has got this provision in it, and hence the 
legislature cannot provide for it; for they all contain 
provisions guaranteeing trial by jury as known to the 
common law. But our friends on the other side seem 
to forget that we are now proposing to acquire the 
local sovereignty of a state, and are not stopping in the 
territorial status, where the constitution of the United 
States is not only our national but our local consti- 
tution, and where it is not only our national but our 
local sovereign, and where the constitution of the 
United States has not only a national but a local action 
upon our courts, but we are proposing to wrest, as it 
were, from the national government the full character 
of local sovereignty which belongs to a state, and 
where it has complete and absolute control over the 



3 — Thompson & Merriam on Juries, Sec. 10. (1882 Ed.) 



ARTICLE I., SECTION 7 247 

whole question of juries and anything and everything 
which it may see fit to control that is not in conflict 
with the constitution of the United States. Does my 
friend from Kootenai County or from Ada County, or 
from Nez Perce County, undertake to say that the con- 
stitution of the United States undertakes to regulate 
the judicial systems of the states? 

Mr. REID. Will the gentleman allow me? 

Mr. CLAGGETT. Certainly; provided you don't 
take it out of my little ten minutes. 

Mr. Reid. No sir; take it out of mine; I won't 
speak two minutes. Does the gentleman's amendment 
embrace any higher grade of crime than misdemeanor? 

Mr. CLAGGETT. Yes sir. 

Mr. REID. I will ask the gentleman if he does not 
know, that on account of the constitutional provision 
that even the nation has, the government never allows 
the district attorney to prefer an information without 
trial by jury for a crime higher than a misdemeanor, 
because it trenches on the right of trial by jury? 

Mr. CLAGGETT. What government? 

Mr. REID. The government of the United States. 

Mr. CLAGGETT. Why, of course, in all matters 
which relate to the laws of the United States, the nat- 
ional constitution is the constitution for the people of 
the whole nation. But every power, every power, is 
lodged in the states and remains in the states, is in- 
herent to the people of the states, except such powers as 
are delegated by the national constitution to the nat- 
ional government. 

Mr. REID. And I would like to ask the gentleman 
if he does not know that under the decisions cited, that 
in states where their constitutions had the very same 
form you propose to engraft on ours — 

Mr. CLAGGETT. I beg your pardon, sir, but I say 
that counsel cannot produce any such. 

Mr. HAGAN. Will you allow me to ask you a 
question? 



248 ARTICLE I., SECTION 7 

Mr. CLAGGETT. Yes sir, a dozen of them, if you 
want to. 

Mr. HAGAN. Has not the Supreme Court of the 
United States decided over fwe cases to the -effect that 
where the crime is infamous you cannot dispense with 
a jury trial in defiance of the constitution? 

Mr. CLAGGETT. Under what law, United States 
law? 

Mr. HAGAN. No sir, where the constitutions of 
the states allowed it. 

Mr. CLAGGETT. No sir, it has not, and I defy 
counsel to produce the authorities here and read them 
to the convention. 

Mr. HAGAN. And furthermore, has it not given 
us opinions to the effect that misdemeanors cannot be 
tried without a jury under state laws? 

Mr. CLAGGETT. Whenever you come down to the 
question, whenever a case comes to the Supreme Court 
of the United States, and the question of its sovereignty 
is raised under a state constitution, you go back to the 
state constitution, and the Supreme Court will enforce 
the state constitution; and if you ever adopt a consti- 
tution here which provides that trial by jury as known 
to the common law shall remain inviolate, the Supreme 
Court of the United States will hold, whenever that 
question properly comes up, that a trial by twelve men 
is meant, and that a unanimous verdict must be ren- 
dered; but if our constitution provides that a verdict of 
ten-twelfths may be rendered, then that is as far be- 
yond the power of the Supreme Court of the United 
States to interfere with as it is for the Shah of Persia 
to undertake to interfere with the Pope's decree. 

Now then, Mr. Chairman, I want to say a few words 
more on this question. I will ask again; what is the 
difference beween misdemeanor and felony in legal 
practice? The only difference between the former and 
the latter is the greater punishment, or amount of 
punishment. Each is a crime, and under any consti- 
tution which provides for a unanimous verdict in crim- 



ARTICLE I., SECTION 7 249 

inal cases, a misdemeanor is practically just as much 
a crime as a felony case. But in misdemeanors the 
punishment is small, and therefore they will dispense 
with juries under the laws of the United States, al- 
together in some cases, and do not allow a jury at all, 
although it is a crime, — so-known. 

Now one question was raised by Mr. Gray that I 
think should be referred to, and that is, about those 
cases where very nearly the whole community is de- 
termined to convict. I have seen cases in court, at the 
beginning of terms of court, in which it was true, as 
stated by him, that whenever the list of criminal cases 
was reached upon the calendar, the jury that would be 
called into the jury box was determined apparently to 
convict, in spite of the evidence, and to directly reverse 
the old common law rule of requiring the defendant to 
be proved guilty beyond a reasonable doubt, and hold 
the defendant guilty in advance and call upon him to 
prove his innocence beyond a reasonable doubt. I have 
seen that, but how does it come? The reason of it, 
Mr. Chairman, is very simple; it is this, that under 
your requirement of a unanimous verdict, term after 
term and year after year goes by without any prac- 
tical enforcement of the criminal law, until crime mul- 
tiplies and criminals increase to such an extent that 
the whole people rise up, as it were, in a revolutionary 
movement, and then for the one or two terms that next 
follow that condition of things they will convict,— al- 
most going to the point of convicting innocent men. 
But if you will provide a system of jury trial by which 
the law can be enforced under ordinary circumstances 
and against ordinary offenses, you will get rid entirely 
of this proposition, and that is, the difficulty which is 
suggested here. Up in my county, for instance, for 
the last five years we have had the most lax adminis- 
tration of the criminal law. Juries would not do their 
duty, — hang, hang, or else acquit defendant after de- 
fendant, until at the last term of court a jury was 
impaneled there under a revolutionary situation, fol- 



250 ARTICLE I., SECTION 7 

lowing which it was exceedingly difficult for many men 
proved innocent to obtain justice at their hands. But 
the whole of the great evil is the direct effect of this 
old system of requiring a unanimous verdict. I think 
I can refer safely to the experience of every old legal 
practitioner in corroboration of this statement. It is 
conceded it is the result of laxity; it is considered 
almost impossible to enforce the law as it is, and so we 
have these revolutionary methods applied at last by an 
indignant populace by and through the action of the 
jury. 

Another thing was suggested by my friend Judge 
Gray, and that is this; he opposes this clause because 
he says it is necessary there should be a unanimous 
verdict in all criminal cases for the purpose of pro- 
tecting the weak. Let me ask this question at the 
hands of this convention, who is the weak in the execution 
of the criminal law? The state or the defendant? Does 
not every member upon this floor know that the weaker 
party is the state, under the restrictions, the limita- 
tions, the benefits, — the unreasonable benefits which are 
given to the defendant? It used to be the case in 
England, where the jury was summoned by the high 
sheriff of the county, and where the sheriff was ap- 
pointed directly by the crown, and where, — as was said 
so ably this morning by the gentleman from Kootenai — 
where the judge had the power of charging the jury 
upon the facts as well as upon the law, — which we 
have done away with, and where the court not only 
influenced but absolutely directed, the verdicts of 
juries, — which was true, — you see that the crown was 
the stronger, and all the safeguards which grew up 
under the common law were designed for the express 
purpose of mitigating this strength so that it should 
not be exercised tyranically. How it is under the 
ordinary administration of the law in the United 
States, on the other hand? We all know that the whole 
thing is reversed. We all know that our sheriff has 
no power except to go out and summon the men who 



ARTICLE I., SECTION 7 251 

are drawn by law from the lists prepared by the county 
commissioners. We all know the defendant has every 
benefit from reasonable doubt. We all know he has a 
double advantage in impaneling the jury. We 
all know that when there has o'nce been a verdict of 
acquittal he cannot be called in question again, no mat- 
ter how wrong the verdict may be. And we all know 
in addition that the court has power to suspend judg- 
ment on the verdict after conviction, in order that ap- 
plication may be made to the governor for pardon in 
any case which may arise now and then, where the con- 
viction is wrong, or where, if not wrong, the punish- 
ment is too severe, so that there is ample opportunity 
given before the execution of the judgment of the 
court for a review of the case by the governor or 
board of pardons. Now I ask whether all these things 
taken together, one and all, do not constitute too much 
advantage on the part of the defendant, and whether 
the strong arm of the state, which is stretched out and 
whose function is to protect the people, is not paralyzed 
by this system of a unanimous verdict. 

Mr. BATTEN. I will ask you, why make an ex- 
ception in capital cases? 

Mr. CLAGGETT. Out of mere tenderness to human 
life, and because if the death penalty is once inflicted 
you can never rectify the error, but on the question of 
imprisonment you have the entire term of his imprison- 
ment to correct it. 

Mr. BATTEN. Don't criminals value their liberty 
as much as their lives? 

Mr. CLAGGETT. No sir; I think my friend would 
prefer to go to the penitentiary to being hung. (Laugh- 
ter.) 

Mr. REID. I do not desire to obtrude myself upon 
this convention, but I want to call the attention of the 
convention to some facts in the history of this jury 
subject, which I will do briefly, and in the first place 
I will say that I feel some diffidence in getting up here, 
one of the youngest members, and seeing around me 



252 ARTICLE I., SECTION 7 

staid old men and old lawyers; but we are making ex- 
periments in this constitution, and doing away with 
vital safeguards incorporated in the American con- 
stitution. The gentleman said they were making it so 
we could get into Congress; but you have got to frame 
it so it will pass the people too, and they esteem this 
right dearly. Does the gentleman remember that in 
1787, when our fathers met in Philadelphia and framed 
the constitution of the United States, they left out the 
right of trial by jury in a civil case, and did not guard 
the right of trial by jury in criminal cases particularly? 
What was the result? An appeal could be taken to 
the Supreme Court on matters of law and fact, — could 
be brought even into the Supreme Court. What did 
they do? Convention after convention met; public 
meeting after public meeting was held; resolution after 
resolution was adopted, and the people cried out that 
this great right, which came down to them sacred and 
hallowed through the centuries, wrung from King 
John on the plains of Runnymede, and which was de- 
clared one of the reasons why they separated from the 
mother country, and sealed their declaration with their 
blood for eight long years, should be put in the funda- 
mental law, the constitution of the land. What was 
the result? You see it today in your constitution 
among the first ten amendments adopted, two years 
after it was put in operation, in the sixth and the 
seventh article, guaranteeing to the people of this 
nation the right of trial by jury. What do we find 
further down in this connection? When we came into 
this convention and took our oaths, we said that we 
would support the constitution of the United States; 
and yet in this seventh amendment it shows that it 
preserved to the people the right of trial by jury. Under 
the fifth, in any case of felony or infamous crime a 
man should never be tried unless on presentment or 
indictment of a grand jury, and yet this committee 
have actually put in this report that even in infamous 
crimes men may be prosecuted on the information of 



ARTICLE L, SECTION 7 253 

the prosecuting officer only, when the constitution, by 
the light of the Declaration, says it shall not be done. 
Gentlemen, the people value these rights. You have made 
one innovation, and I raise my voice in warning now. 
Gentlemen may say: Here, you want to make a poli- 
tical record." I want to make none; I intend to make 
none; I want no office in the gift of the people. 1 
intend to pursue my occupation as an ordinary citizen; 
as an ordinary citizen I value these rights, and I intend 
to raise my voice against it. 

When you go to Congress — and you have had warn- 
ing, as the gentlemen know — you go there with values 
of property far less than any other state went into the 
Union; you go there with a population perhaps less 
than any others have gone in; you go there in an atti- 
tude of supplication, but now when you go asking in 
that way, with an innovation that I believe strikes at 
the very foundation of the constitution, will it be strange 
if they refuse you admission? Gentlemen, follow the 
paths of your fathers; they trod them successfully. 
The constitution they framed is the heritage of our 
American Nation. We are glad it is ours, we rejoice 
in it, we enjoy its liberty; we should be chary of chang- 
ing it in the interest of untried experiments, and not 
strike this liberty down that has been preserved and 
transmitted to us by our revolutionary forefathers. 

Question, Question. 

The CHAIR. Gentlemen, you have heard the ques- 
tion proposed. Mr. Claggett, the gentleman from Sho- 
shone, proposes the following amendment. (Secretary 
reads) "Insert after the word 'verdict* in the second 
line of Section 7, the following: 'and the legislature 
may provide that in all criminal actions, except for 
capital offenses, five-sixths of the jury may render a 
verdict.' " (Vote). The noes seem to have it — the 
noes have it. 

Mr. CLAGGETT. Mr. Chairman, I offer the fol- 
lowing amendment. After the word "verdict," in the 
second line of Section 7, I move to add : "and the legis- 



254 ARTICLE L, SECTION 7 

lature may provide that in all criminal actions, except 
where the punishment is death or may extend to impris- 
onment for life, five-sixths of the jury may render a 
verdict." (Seconded). 

Mr. CLAGGETT. I offer the amendment for the 
purpose of meeting the objection, which had in my 
judgment considerable force, that was made — although 
I do not think it was in order — by the gentleman from 
Kootenai. Under our statute, on an indictment for 
murder— and probably the statute will never be 
changed; it will in all probability remain the same — 
under such an indictment the defendant may be con- 
victed of murder in the first degree, the punishment of 
which is death; or murder in the second degree, the 
punishment of which is imprisonment in the territorial 
prison not less than ten years, and may extend to life; 
or manslaughter. In other words, the amendment that 
I offer now excludes all those higher and graver of- 
fenses from the operation of the amendment, and con- 
fines it to cases of misdemeanor and ordinary felonies, 
which are not punishable by death or imprisonment for 
life. I presume this vote that has just been taken has 
been influenced to some extent by views with regard to 
the question as to whether the constitution of the United 
States has any bearing upon this question. It certainly 
has not. But if I had time, I could read here to show, 
as I said before 

The CHAIR. The chair is sorry to say that we have 
not; we cannot violate the rules. 

Mr. CLAGGETT. I do not understand that I am 
violating any rule, however. 

The CHAIR. No, only that the time cannot be ex- 
tended. 

Mr. CLAGGETT. No, sir, and I do not intend to 
ask it. As I said before the constitution of the United 
States is the organic law of the nation in a national 
capacity, and these amendments to the federal consti- 
tution which have been referred to here are mere limita- 
tions upon the powers to be exercised by Congress, but 



ARTICLE I., SECTION 7 255 

every power which is not specifically delegated to Con- 
gress by the national constitution, or which in the na- 
tional constitution is not specifically prohibited to the 
states, is reserved to the states respectively or to the 
people, by the language of that instrument itself. There 
is in the constitution of the United States no prohibi- 
tion against a state having any such legislation as this, 
but there is a prohibition against Congress passing any 
law — not for the states but for the nation — enabling 
the government to do away with trial by jury; and it 
is utterly impossible for Congress to pass a law today, 
that in any federal court, or in any matter arising 
under the constitution and laws of the United States, 
less than a unanimous verdict may be allowed, in any 
action at law where the amount in controversy amounts 
to as much as twenty dollars. Nevertheless, this morn- 
ing we went ahead and prescribed the other rule here. 
I offer that amendment without further remarks. 

Mr. HEYBURN. Mr. Chairman, without taking 
up the time of this convention, I just simply want to 
suggest a word of warning to this convention, and that 
is, if we consider one crime after another, it will take 
a week to dispose of this section with this kind of 
amendments that have been offered. I suppose the 
next bite will be to except those crimes the punishment 
for which is ten years' imprisonment, then those for 
five years, and so on down. For one, I propose to op- 
pose any measure that takes away the right of a unani- 
mous verdict in defense of a man's liberty for any 
crime or misdemeanor whatever. I believe if the fight 
is lost in this convention it will be carried out into the 
public field by their vote this fall, and be carried fur- 
ther into the Congress of the United States, where it 
will come before a body of men three-fourths of whom 
have been distinguished members in constitutional con- 
ventions of their states, over periods extending for the 
last fifty years, and who have heard and considered 
these questions; and when these conservative, able, 
wise men of the country dally with this question, will 



256 ARTICLE I., SECTION 7 

they recognize a constitution where a new people, yet 
untried in the science of government themselves, de- 
mand such an innovation as this upon the doctrines 
they have considered and passed upon before half of 
us were born? So I say, if we are going to take it 
up, bite by bite, crime after crime, we will exhaust the 
whole afternoon. I, for one, propose to vote against 
any innovation on the unanimous verdict in criminal 
cases. 

Mr. HAGAN. I would like to inquire if this new 
amendment has been tried in Nevada? 

A MEMBER. I would like to ask the gentleman 
who proposed this amendment, if he said the Congress 
of the United States could provide for the conviction 
of offenses less than felonies by the verdict of a less 
number than twelve. 

Mr. CLAGGETT. What is the question? 

MEMBER. Did I understand you to say that the 
Congress of the United States — that it was within the 
province of the Congress of the United States to pro- 
vide for the punishment of persons convicted of any 
crime against the laws of the United States by the 
verdict of a less number than twelve? 

Mr. CLAGGETT. I have expressly stated that 
under the constitution of the United States, the limit 
of the authority of Congress, that they cannot do it; 
nor can they do it in civil actions where the amount in 
controversy amounts to more than twenty dollars. 

Mr. AINSLIE. Does not the constitution of the 
United States provide for the number constituting it? 

Mr. CLAGGETT. No, sir, it does not, but it has 
been decided repeatedly, in the absence of a statute or 
constitution which says it may be less than twelve, 
that where trial by jury is not definitely mentioned, it 
means twelve unless it says something else. 

Mr. AINSLIE. As I understand it, the common law 
of England has never been adopted by the Congress 
of the United States, but the understanding has been 
that trial by jury under the constitution of the United 



ARTICLE I., SECTION 7 257 

States comprehends the common law doctrine of a 
trial by jury. Now if that is the meaning of the con- 
stitution, the law-makers and law-givers who have 
presided over the inception of the laws of this nation 
for a century have not seen proper to adopt any amend- 
ment or legislation looking to convicting persons by a 
jury of less than twelve, or five-sixths, as proposed by 
the gentleman here; and that is a very worthy example 
for us minor statesmen to imitate. That is, I adhere 
to the doctrine that where a man's liberty is at stake 
he shall be tried by a jury of twelve and entitled to 
every reasonable doubt, and therefore should not be 
convicted except by a unanimous verdict of the twelve. 
You do away with the whole doctrine of reasonable 
doubt if you reduce the number capable of finding a 
verdict to less than twelve, and every law writer in all 
our American jurisprudence anywhere in our own 
country, and forget that the party is entitled to the 
benefit of every reasonable doubt; and what a reason- 
able doubt is, is specifically set forth by the law 
writers. Now I am opposed to this doctrine; I am 
in favor of the report of this committee, but I took 
no part in this debate on the question of civil actions. 
I believe a verdict of the jury by three-fourths of their 
number in civil cases proper, but I would not have 
gone so far. I was more in favor of trying the amend- 
ment of the gentleman from Bingham in leaving that 
experiment to the legislature, and not perpetuating 
what they call an experiment by placing it in the con- 
stitution and making it perpetual. Now, sir, the gentle- 
man from Alturas, with a zeal that is probably un- 
equalled by any member in this body, seems to use 
the same argument upon the one side of the question in 
civil actions, and tries to take up that on the opposite 
side when it comes to criminal proceedings. I jotted 
down a remark or two that he made in advocating the 
right of three-fourths of a jury to find a verdict in 
criminal cases, and in placing it within the province of 
the legislature to say as to whether that shall be done 



258 ARTICLE I., SECTION 7 

or not. He said he was not in favor of dropping hints 
to the legislature how they should do, but he says that 
we must say positively that the legislature must do so 
and so — say what the legislature must do and what they 
must not do. That is, in civil cases, when the matter 
of dollars and cents is involved, he was in favor of not 
allowing the legislature to have anything to do about 
it, but put it in the constitution that three-fourths of 
a jury were capable of finding a verdict. That is, that 
you cannot trust the legislature when it comes to dol- 
lars and cents, but when it comes to the question of a 
man's liberty, you may do so. Now, as an argumentum 
ad hominem, if his position was good in the other case 
where it comes to civil proceedings, this position is 
sound in criminal proceedings. But I do not pursue 
the course of this argument further. I say it is legiti- 
mate in civil proceedings that a jury of three-fourths 
should find a verdict. I believe it will facilitate litiga- 
tion and dispatch many suits a great deal quicker than 
by having a unanimous verdict. But when we come to 
the life and liberty of the citizen, whether it means im- 
prisonment in the county jail or ninety and nine years 
in the penitentiary, I say we should pause and be gov- 
erned to a large extent by the experience of those who 
have gone before us. Take the ablest men in the coun- 
try, such men as we have in Congress today, such men 
as Judge Edmunds of Vermont, one of the ablest law- 
yers of the United States in that body, and you will 
find that they have never yet undertaken to advocate 
the doctrine that five-sixths of a jury should find a ver- 
dict in a criminal case. Therefore I oppose the motion 
made by the gentleman from Shoshone, and I hope 
this body will not adopt it. I must say, as stated by 
one or two gentlemen already, and by the gentleman 
from Shoshone, Mr. Heyburn, that we have innovations 
enough in here now to make it a little risky for this 
constitution to run the gauntlet of Congress, and if we 
attempt to change the whole jury system in regard to 
criminal proceedings, I say, gentlemen, that you will 



ARTICLE I., SECTION 7 259 

find that constitution laid upon the table of the senators 
and representatives until it meets the approbation of the 
next session of Congress. 

Cries of "Question!" (Vote). 

The CHAIR. The noes seem to have it; the noes 
have it. 

Mr. CLAGGETT. Mr. Chairman, I offer the follow- 
ing amendment: Add after the word "verdict," in 
the second line of Section 7, "and the legislature 
may provide that in all cases of misdemeanor, five- 
sixths of the jury may render a verdict." (Seconded). 

Mr. CLAGGETT. I simply offer that. I have not 
debated these questions after the first general proposi- 
tion, and simply wish to suggest in connection with 
this, that I am trying to save the counties expense, as 
well as to secure a better administration of the law. 
In these minor offenses, in police courts and 
in justices' courts, juries hung by one or two men cause 
the counties a great deal of expense. I do not appre- 
hend that any gentleman here will seek to invoke the 
ancient practice in the protection of a man who is 
charged with stealing a few dollars' worth of property 
of any kind whatever. 

Cries of "Question." (Vote). 

The CHAIR. The noes seem to have it. 

Cries of "Division." Rising vote shows ayes 31, 
nays 21. 

The CHAIR. The motion prevails. 

Mr. CLAGGETT. I move the adoption of the sec- 
tion, Mr. Chairman. (Seconded). 

Mr. GRAY. I would like to have it read now as 
amended. 

SECRETARY reads: The right of trial by jury 
shall remain inviolate; but in civil actions three-fourths 
of the jury may render a verdict, and the legislature 
may provide that in all cases of misdemeanor five-sixths 
of the jury may render a verdict. A trial by jury may 
be waived in all criminal cases not amounting to felony 
by the consent of both parties, expressed in open court, 



260 ARTICLE I., SECTION 8 

and in civil actions by the consent of the parties, signi- 
fied in such manner as may be prescribed by law. In 
civil actions and cases of misdemeanor the jury may 
consist of twelve, or of any number less than twelve 
upon which the parties may agree in open court. 

Cries of "Question!" (Vote). 

The CHAIR. The ayes seem to have it; the ayes 
have it. 

Section 8. 

The question is now upon the consideration of Sec- 
tion 8. The clerk will please read it. 

The CLERK reads Section 8 as reported. 

Mr. REID. I offer the following amendment: In 
Section 8, line 2, strike out the following: "or informa- 
tion by the public prosecutor." (Seconded). 

Mr. REID. In the section it says : "No person shall 
be held to answer for a criminal offense." That in- 
cludes all degrees of murder. When we were sworn in 
we took an oath to support the constitution of the 
United States. Article 5 says: "No person shall be 
held to answer for a capital, or otherwise infamous 
crime, unless on presentation or indictment of a grand 
jury, except in cases arising in the land or naval 
forces," etc., etc. Now, here a public prosecutor may 
prefer information against a man for murder or felony; 
in other words, it is a plain, open, direct violation of 
the constitution of the United States. It can only apply 
to misdemeanors. I would be opposed to informations 
even for misdemeanors. It provides elsewhere in the 
Rill of Rights, no man shall be put to answer except 
on a warrant duly issued upon an affidavit as to the 
charge, and so on, or indictment of his neighbors, the 
grand jury. Here is another innovation. This as it 
stands now is a plain violation of the United States 
constitution as clear as it can be, but even if you limit 
it to misdemeanors, I am opposed to it then. I am 
opposed to any one man having it in his power to pre- 
fer informations and prosecutions against his fellow 



ARTICLE L, SECTION 8 261 

citizens for any crime. We have often heard that the 
courts are open. When you want to prosecute a man, 
go up, file your affidavit, meet him in open court, con- 
front him with your witnesses. If he is held or bound 
over, then let his neighbors, pro corpore comitatus, as 
it used to be called in the ancient law, meet in grand 
jury assembled and there consider whether or not he 
should be indicted. After, they have considered it, let 
him be put upon his trial, if they find a true bill; but I 
am opposed to lodging in the hands of a prosecutor this 
power to use their malice or prejudice or any other mo- 
tive that might actuate them in the prosecution of 
their fellow citizens. 

Mr. GRAY. I don't think that we exactly under- 
stand the point of this amendment. "No person shall 
be held for a criminal offense unless on presentment or 
indictment of a grand jury or information of a public 
prosecutor." 

Mr. RE ID. I understand that language to mean, 
if the gentleman will pardon me, that a man may be 
held to answer by an information filed by a district at- 
torney. 

Mr. GRAY. That is, if the district attorney knows 
of the offense, he goes before a magistrate? 

Mr. REID. No, sir, that is not what this intends. 
If he goes before a magistrate, he does not file an in- 
formation; he files an affidavit and warrant issues di- 
rect. This is intended to act as necessary evidence in 
misdemeanors — file informations and try a man on it. 
Instead of an indictment or presentment, he simply 
files an information and you try him upon that. It will 
become 

Mr. GRAY. Or, that is when he knows the crime 
is committed. 

Mr. MORGAN. Oh, no; it is 

Mr. GRAY. Held for a criminal offense — he is not 
being punished. 

Mr. MORGAN. They can try it. 

Mr. GRAY. Well, I don't know what they mean. 



262 ARTICLE I., SECTION 8 

That is what I want — simply to study out what they 
mean. 

Mr. AINSLIE. I would suggest to make that more 
definite — that the first line be amended to read, "held 
to answer." 

The CHAIR. The amendment now before the com- 
mittee is to strike out this portion of the section "or 
on information by the public prosecutor." Do you de- 
sire to make an amendment to that amendment? 

Mr. AINSLIE. No, sir; it doesn't come in there. 

The CHAIR. Any further remarks upon the 
' amendment ? 

Mr. STANDROD. As a member of the committee 
on the Bill of Rights, I desire to say that this matter 
was discussed among that committee and it was sub- 
mitted to a great many members of this convention 
coming from different parts of the country. We thought 
it was better that this clause in this section should be 
placed there. In many of the counties of this territory, 
there is but little crime committed. In the county from 
which I come, there are perhaps one or two criminal 
actions during the year, and I believe for the last two 
years there has only been one criminal prosecution in 
the county upon the indictment of the grand jury. 
There is sometimes a case that a slight felony has been 
committed in the county — not a heinous offense — not 
an offense of any great moment, yet it requires, in 
order to prosecute the criminal that he should be pre- 
sented by indictment, and in order to do that, it will 
require, before that matter can be brought before a 
court and tried, an expenditure, in order to obtain the 
grand jury to indict him, of at least five or six hundred 
and from that to a thousand dollars. All this talk 
about this section being unconstitutional is bosh, and 
gentlemen here say that this committee dared to come 
here and confront this convention with a section of 
this kind directly in contravention of the constitution 
of the United States, and are attempting to bring before 
this convention an innovation that was never heard of 



ARTICLE I., SECTION 8 263 

before. I say this is not true. This clause has been 
adopted by several states of this Union. The constitu- 
tion of Illinois provides that the grand jury system 
may be absolutely abolished, 1 and in California, that 
great state, where the survival of the fittest is a maxim 
that has been put into practical use, instead of theory, 
they have adopted this plan and the prosecutions of 
this state have been successful and they are conducted 
under a section of this kind. And when he talks about 
its unconstitutionality, I desire to ask the gentleman if 
the section that he read applies to criminal prosecutions 
brought under the laws of a state? 

Mr. REID. Yes, sir, "No person shall be held to 
answer for a capital or otherwise infamous crime unless 
on presentment or indictment of a grand jury, except 
in cases arising in the land and naval forces or in the 
militia," and so on. You have put it in your constitu- 
tion, but why did you add that "land and naval forces," 
when the United States clause is just the same; that 
follows. I admit that a public prosecutor could lodge 
an information on a misdemeanor, but you have crim- 
inal offenses, which includes the whole law — all of the 
criminal law. 

Mr. STANDROD. That is a matter no longer in 

debate among lawyers. It is so thoroughly expounded 

by the decisions of the courts where this matter has 

gone up, and by the Supreme Court of the United 

States, that it no longer remains in doubt, and that was 

thoroughly considered before this clause was adopted by 

the committee. All this talk about giving the public 

orosecutor so much power — I want to ask the gentleman 

f it is not the experience, as I believe, of the majority 

>f attorneys in this convention, that most generally 

he grand jury is governed by the directions or requests 

f the district attorney when he submits cases to them? 

is very rarely the case that when he desires a person 
-osecuted the grand jury will refuse; indeed, most 



-Sec. 8, Art. 1, 111. Const, of 1870. 



264 ARTICLE L, SECTION 8 

generally they are governed by his advice upon the 
law and facts that pertain to the law. And further- 
more ■ 

Mr. REID. Will the gentleman allow me to inter- 
rupt him a moment? 

Mr. STANDROD. Yes, sir. 

Mr. REID. Allow me to read the clause from the 
California constitution. "Offenses heretofore required 
to be prosecuted by indictment shall be prosecuted by 
information, after examination and commitment by 
a magistrate, or by indictment, with or without such 
examination and commitment, as may be prescribed 
by law." 1 That is, he cannot lodge an information 
until he has been committed by indictment or indicted 
by a grand jury. 

Mr. STANDROD. That is not to be tried at all ; it 
is to be committed. Furthermore, this clause does not 
abolish the grand jury system. If the district attorney 
of the county or the district should get to play too high 
a hand, if he should undertake to prosecute men where 
there was no evidence against them, and for the mere 
purpose of prosecuting them, most assuredly the judge 
of that district under this section has control of all that 
matter. He can at any time he thinks the district at- 
torney is not performing his duty, call a grand jury 
under this section, and it is very likely the grand jury 
would be called once a year, or once in two years, as it 
became necessary. But I believe this will save the 
money of the counties of this territory, hundreds and 
hundreds of dollars a year in the prosecution of such 
crimes as horse stealing and cattle stealing and things 
of that nature that require to be presented by indict- 
ment. I believe there is no innovation in it that will 
be disastrous to the laws of this territory or to the 
enforcement of them, or whereby any party will be 
injured. And, coming from the section of country l| 
do, and having seen this matter tested, I believe that i1 



!— Art. 1, Sec. 8, Cal. Const. 1879. 



ARTICLE I., SECTION 8 265 

will save to my county alone hundreds of dollars a 
year. I trust this convention will adopt the section as 
it has been reported by this committee. 

Mr. CLAGGETT. I offer the following amendment, 
by adding after the word "prosecutor" the words "after 
a commitment by a magistrate." (Seconded). 

The CHAIR. Does the gentleman accept the amend- 
ment? 

Mr. RE ID. No sir, I do not accept it. 

Mr. CLAGGETT. I think, Mr. Chairman and gen- 
tlemen of the convention, the amendment will obviate 
any possible objection to the adoption of the section as 
it now stands, so far as this clause is concerned. We 
are getting back to the same old proposition that the 
constitution of the United States, the limit upon con- 
gressional power, is to be taken and construed as the 
limitation upon state power, which is a proposition I 
utterly deny, and upon which I say the gentleman can- 
not find any text-book on the constitution giving judic- 
ial authority to that effect. I throw that out broadly as 
an axiom, and I would like to see my friend Reid or 
anybody else produce an authority to sustain that propo- 
sition they advocate. I know that in Michigan they 
have abolished grand juries altogether. If the consti- 
tution of the United States secured grand juries in all 
cases in the states, how were they able to abolish it, and 
send people to the gallows and penitentiary for years 
without it? I did not know until it was stated by the 
gentleman from Cassia, Mr. Standrod, that Illinois had 
made any change in it. 

Mr. HAGAN. It has not; it was a mistake. 

Mr. CLAGGETT. What is that, Illinois has not? 

Mr. HAGAN. Illinois has not. 

Mr. CLAGGETT. I understand now that it has, 
that Illinois has made a change in it, authorized a 
change to be made by the action of the district attorney, 
as stated by the gentleman. I had no knowledge of that 
before. The section as it now stands with the amend- 
ment which I have offered, is substantially the system 



266 ARTICLE L, SECTION 8 

that prevails in the state of Wisconsin, where they 
have reached in my judgment the true rule in regard to 
the matter. There, as also in California, they do not 
abolish the grand jury altogether. They leave the 
grand jury system in existence, and allow the district 
attorney after commitment to prepare his presentments 
on all those cases which are sent in preparatory to the 
sitting of the court, and he has plenty of time to prepare 
his indictments in advance on all cases where the magis- 
trate has bound anybody over to appear before a grand 
jury. But in cases where the district has a good dis- 
trict attorney, the expense of the grand jury system, 
which is great, is dispensed with. But wherever for 
any reason the district attorney does not perform his 
duty under the law, the grand jury system is retained 
and the judge may by special order at any time call a 
grand jury, and that is the substance of the provision as 
reported here. It will save thousands of dollars every 
year to the counties of this territory, and nobody can 
be injured by the insertion of this amendment. The 
committing magistrate has already passed upon the 
question. There is a presumption that there is probable 
cause, or rather, it has been adjudicated that there is 
probable cause for holding the party over, and that is 
all the grand jury is entitled to do, to say that there 
is probable cause to believe the man is guilty, and after 
the committing magistrate has passed upon it, there is 
no reason why the district attorney should not draw 
up the presentment and present it to the court without 
the intervention of a grand jury. 

Mr. RE ID. The only objection I see to that, Mr. 
President, we don't need it until after the magistrate 
has bound him over. My short experience in the terri- 
tory has been that with most magistrates it seems that 
the dictum of the district attorney is the end of the 
law. In other words, he will direct this magistrate, 
file his information or keep his prosecution before the 
magistrate and have the man bound over; that is what 
he wants. But if the man has been bound over to the 



ARTICLE L, SECTION 8 267 

grand jury, his neighbors can come in. Just consider 
how many bills are thrown out, go and examine the 
court records, and you will find that two thirds of the 
bills presented are returned not true bills. Yet you will 
allow one man, who dictates to the magistrate what he 
wants in regard to the prosecution of the accused, to 
have him bound over. This may be all right with a 
district attorney where a lawyer on the other side hap- 
pens to be defending him. But I say, stick to the old 
rules. The courts are open to any man's affidavit. If 
you want to make a charge against a neighbor, walk 
up like a man and swear out and have a warrant issued 
and bring him before a grand jury. The gentleman 
says it costs so much; but cheap justice don't sometimes 
pay; under such rules as are just it does cost something. 
If there are few cases for the grand jury, then it is 
not going to cost much. If there are a great many 
cases it is going to cost a good deal even for the public 
prosecutor to prosecute them. My friend throws out a 
challenge — he heard me call for time to show authori- 
ties, and I can show authorities that you have trenched 
upon the criminal jurisdiction — or that the courts of the 
United States in their jurisdiction do not allow district 
attorneys to file an information, only in cases of mis- 
demeanors; they stick to the old rules more in their 
courts, and that is the reason lawyers like to try cases 
in those courts. 

Mr. SWEET. I think the time has come to draw 
the line on the gentleman from Nez Perce. I think he 
is reflecting upon the justices of the peace in Idaho. 
(Laughter). He said that in his short experience in 
practicing law in this territory he has found that jus- 
tices of the peace are not to be relied upon. Now I 
want ■ 

Mr. RE ID. I want my friend to state my language 
correctly. 

Mr. SWEET. Just a moment. I want to know if 
the gentleman from Nez Perce has practiced law in any 



268 ARTICLE I., SECTION 8 

country where he could tell a justice of the peace what 
the law is. (Laughter). 

Mr. RE ID. I want him to state me correctly, and 
I will stand by the record as made by the reporters. 
I did not say they are not reliable; I said I had found 
that the dictum of the district attorney was with them 
the end of the law, and I think my brother, if he recalls 
his experience, will say the same thing. And I have 
found no difference between them here and in the 
east, and therefore I want to take that power from 
those fellows that can use that dictum in that way. 

Mr. SWEET. Well, I will further remark that 
while a great many indictments or informations are 
thrown out by the grand jury as not being true bills, 
is it not also true that about as many indictments that 
are handed in by the grand jury are also thrown out? 
It will average, I think, without: any question, that nine 
out of ten indictments that are found are quashed. 

Mr. GRAY. I don't think there will be a great deal 
of danger from a prosecuting officer under a salary. 
I don't complain that we are taking a long time in all 
these arguments, because I like to hear them, but I 
do hate to have our constitution get in such a fix that 
Congress in considering it will have to have such an 
argument every day as we are having. I think we are 
putting too much in this all the time; we are drying 
all the time to lay the foundation too wide, to leave 
nothing for the legislature. I would conclude, when 
we get through here, from the way we have commenced 
on our first bill, that we will not need a legislature 
again for twenty years. (Laughter). It rather seems 
that way to me — that we are going to do it all in this 
convention, and I want as much of this marked out as 
can easily be done. 

Mr. HAGAN. I would like to say this, Mr. Chair- 
man. I do think that the gentlemen from Latah and 
Nez Perce leave the justices of the peace in an awkward 
position. I would like to say that my opinion is that 
there is not any of them to be relied upon. I don't 



ARTICLE L, SECTION 8 269 

wish to have these gentlemen dodge the question, if 
they pretend a justice of the peace knows how to file 
an information. If the gentleman from Nez Perce un- 
derstands that I announced that doctrine that none of 
them can be relied on, I have no amendment to make. 
If Mr. Sweet's criticism goes to the effect that some of 
them can, I want to amend; that's all. I don't want 
the convention to offend the gentleman from Ada any 
more. (Cries of "Question"). 

SECRETARY. The amendment is, to add after 
the words "public prosecutor," the words "after a com- 
mitment by a magistrate." (Vote). 

The CHAIR. The ayes seem to have it. (Division 
called for). Rising vote shows ayes 34, nays 18. 

The CHAIR. The amendment is adopted. This 
disposes of the amendment of the gentleman from Nez 
Perce to strike out those words, is my understanding. 

Mr. REID. No sir. 

The CHAIR. Then the question is upon the motion 
to strike out. 

SECRETARY reads: The amendment offered by 
Mr. Reid is to strike out in Section 8, line 2, the follow- 
ing: "or information of the public prosecutor." Mr. 
Claggett moved to amend by adding the words, after 
the word "prosecutor," after a commitment by a magis- 
trate." 

Mr. REID. Now, as I understand it, and in order 
that we may vote intelligently, a vote for that now is to 
the effect that after a man is bound over for murder 
by a magistrate, on information of the public prosecutor 
he may be tried. 

Mr. CLAGGETT. I understand the motion to be 
now to strike out the clause as amended. 

Mr. REID. I say that your amendment, as applied 
to criminal offenses, means that after a man is bound 
over for murder, on the information of the prosecuting 
officer he can be tried. 

Mr. CLAGGETT. In other words a vote in the 



270 ARTICLE I., SECTION 8 

negative is to leave that power to the prosecuting at- 
torney. 

Mr. BEATTY. I don't understand very well back 
here, gentlemen. If you strike out those words, "or in- 
formation of the public prosecutor," then leave it so 
that an indictment can only be found after he is bound 
over, or, if Mr. Claggett's amendment is adopted, then 
a party cannot come before a grand jury and have an 
indictment found — he must first be committed by a 
magistrate ? 

Mr. CLAGGETT. Oh, no. 

Mr. BEATTY. We have now adopted the amend- 
ment which Mr. Claggett offered. Now is it proposed 
to strike out the words "or information of the public 
prosecutor?" 

The CHAIR. Yes, that is the motion. 

Mr. BEATTY. So that it will then read in this 
way: "No person shall be held for a criminal offense, 
unless on presentment or indictment of a grand jury, 
after a commitment by a magistrate." 

Mr. CLAGGETT. "Or information of the public 
prosecutor." 

Mr. REID. "After a commitment by a magistrate" 
is the new amendment. 

The CHAIR. The question is now before the com- 
mittee to strike out the words "or on information of the 
public prosecutor." Are you ready for the question? 
(Vote. Division called for). Rising vote shows ayes 
21, nays 33. 

The CHAIR. The motion is lost. 

Mr. CLAGGETT. Mr. Chairman, I move to strike 
out the words in line 4, "in the army or navy." We 
can't have an army or navy under the constitution of 
the United States. 

Mr. AINSLIE. The word "or" should be stricken 
out. 

Mr. CLAGGETT. Leave it in the motion. 

The CHAIR. The motion is to strike out the words 



ARTICLE L, SECTION 8 271 

"in the army or navy or." (Vote). The motion is car- 
ried. 

Mr. MORGAN. I am afraid in the adoption of this 
amendment hastily we will get this section so that it 
reads badly, and it seems to me that it reads badly now. 
It says no person shall be held for a criminal offense. 
I presume that is not what is meant. The correction 
I wish made is : "No person shall be held to answer for 
a criminal offense." I offer this amendment in order 
to correct that. This would prevent a criminal being 
held after he was tried and convicted, it occurs to me; 
I only suggest it should be done in a certain way. I 
will make this amendment to read, to insert after the 
word "held" the words "for trial" in the first line. 

Mr. AINSLIE. My opinion is that the word should 
be "answer," instead of "trial." 

Mr. MORGAN. I had it first "answer," but I be- 
lieve "be held for trial" is a better term. It is rather 
uncertain, the meaning of the clause, if you say "shall 
be held to answer," although those are the old words in 
all the constitutions. What he is held for really is for 
trial. (Seconded. Vote). 

The CHAIR. The ayes have it, the amendment is 
adopted. Are there other amendments to section 8? 

Mr. BE ATT Y. I call for the reading of the section 
as amended. 

SECRETARY reads: No person shall be held for 
trial for a criminal offense, unless on the presentment or 
indictment of a grand jury or information of the public 
prosecutor after a commitment by a magistrate, except 
in cases of impeachment, in cases cognizable by the 
probate courts or by the justices of the peace, and in 
cases arising in the militia when in actual service in 
time of war or public danger; Provided, That a grand 
jury may be summoned upon the order of the judge of 
the district court in the manner provided by law. 

Mr. BEATTY. I move the adoption of this section 
as now read. 



272 ARTICLE L, SECTION 8 

Mr. HAGAN. I desire to move an amendment, Mr. 
Chairman. 

SECRETARY reads: After the word "held" in 
the first line, add "to answer for a capital or otherwise 
infamous crime." (Seconded). 

Mr. HAGAN. I have merely put that in, because 
we are getting at this now in a strange manner. This 
section is attempted to be a copy of Article 5 of the 
constitution of the United States; it says: "No per- 
son shall be held for trial for a criminal offense, unless 
on the presentment, etc., or information of the public 
prosecutor." The words suggested are better. The 
constitution of the United States provides that he shall 
never be held to answer for a capital or otherwise in- 
famous crime. Of course they may present an informa- 
tion for misdemeanors, but if the attempt is made to 
copy that from the constitution of the United States, 
there is a very material variance, if you compare the 
United States constitution with this Section 8. 

Mr. GRAY. I really do not understand this, Mr. 
Chairman. It seems a person cannot be held to answer 
for a criminal offense described to be an infamous crime 
unless on the presentment or indictment of the grand 
jury or information of the public prosecutor after com- 
mitment by a magistrate. 

The CHAIR. That matter is disposed of. 

Mr. GRAY. Well, I don't understand it. You had 
better send an interpreter along with this clause when 
you get through with it — somebody that knows more 
about it than I do. I can't understand it now. Inform- 
ation of the public prosecutor after examination by a 
magistrate. He is held on the commitment of the magis- 
trate, and now can he not be held for lesser offenses 
than those mentioned in the amendment of the gentle- 
man from Shoshone? 

Mr. HAGAN. I don't come from Shoshone. 
(Laughter). 

Mr. GRAY. Well, excuse me; I am glad you don't. 
It seems to me that this is something that ought to be 



ARTICLE L, SECTION 8 273 

allowed for. Under our law you can indict or hold for 
a misdemeanor, or for anything that is triable. They 
are to be held for any criminal offense, except such of- 
fenses as therein enumerated. Really, I don't under- 
stand it. 

Mr. CLAGGETT. Mr. Chairman, the section as it 
was originally, in the respect to which I have called 
attention, and as it has been amended also — for the 
amendment does not touch it — is not intended, I think, 
by the convention to be adopted. The way we have it 
now; no person shall be held for trial for a criminal 
offense, unless on presentment or indictment or informa- 
tion, after commitment. That excludes, the way it is 
now, all petty cases in justices' courts, where the par- 
ties are held without presentment, indictment or com- 
mitment; in other words, all cases of petty larceny in 
probate courts and justices' courts. The whole matter 
can be covered by one amendment, which I will suggest 
to my friend from Kootenai. I therefore move as an 
amendment to his amendment, that the words "a 
criminal offense" be stricken out, and the word "felony" 
inserted. It will then read: "No person shall be held 
for trial for felony, unless on presentment or indict- 
ment of a grand jury," leaving the justices' courts to 
proceed with their minor offenses. 

Mr. HAGAN. I had stricken those words out. I 
will accept that, only I want that in my motion — strike 
those words out. 

Mr. CLAGGETT. Now you have it; "capital or 
otherwise infamous crime." 

Mr. HAGAN. Well, those are the words of the 
constitution of the United States. 

Mr. CLAGGETT. Well, I suggested a term better 
than the words "infamous crime." That term covers 
felony, perjury and such, but "felony" covers all cap- 
ital cases, and all other cases except misdemeanors. 

Mr. HAGAN. Well, I will accept that amendment. 

Mr. SWEET. I would like to ask the gentleman 



274 ARTICLE I., SECTION 8 

from Shoshone if in his amendment it reads "shall be 
held for trial" or "held for answer.'' 

Mr. CLAGGETT. That has been adopted; "held 
for trial for felony." 

Mr. SWEET. Well, that was "held for answer" be- 
fore. 

Mr. CLAGGETT. Well, I don't care anything about 
that. I think the words are synonymous, "trial" or 
"answer." 

Mr. SWEET. I think Mr. Hagan's amendment was 
to the effect that he should be held to answer. It 
occurs to me that it is best to draw the line between 
being held to answer and being held for trial. A man 
might answer and still be held for trial. 

Mr. HAGAN. Yes, and our statutes go to the extent 
that he may not answer before taking it before the 
courts whether he may or may not be held for trial, 
but he is held to answer that charge. 

Mr. CLAGGETT. Well, I thought that was dis- 
posed of. 

Mr. HAGAN. No, my motion strikes that out, and 
the other word too. 

The CHAIR. You have heard the amendment pro- 
posed by the gentleman from Kootenai; are you ready 
for the question? 

Mr. MORGAN. Let me ask the gentleman who of- 
fers this amendment how it will read with the balance 
of the section, which will then read: "No person shall 
be held to answer for a felony except in " 

Mr. HAGAN. "for any capital offense or otherwise 
infamous crime." 

Mr. MORGAN. Well, I understood the gentleman 
from Shoshone's amendment 

The CHAIR. That was accepted. 

Mr. CLAGGETT. Yes. 

Mr. MORGAN. "Held to answer for a felony?" 

Mr. HAGAN. Yes, any felony. 

Mr. MORGAN. Then we will have it in the follow- 
ing words — it reads as follows: "No person shall be 



ARTICLE I., SECTION 8 275 

held to answer for a felony, except in cases cognizable 
by the probate or justice courts." 

Mr. HAGAN. "unless on presentment or indict- 
ment." 

The CHAIR, "presentment or indictment." 

Mr. MORGAN. Yes, but I read it to show the con- 
nection — I left out those words: "No person shall be 
held to answer for a felony, except in cases of impeach- 
ment, and cases cognizable by the probate and justice 
courts." 

Mr. REID. I would like the secretary to read the 
section as amended, showing the amendment as offered 
by Mr. Hagan. 

The CHAIR. The clerk will read the amendment. 

SECRETARY reads: After the word "held" in the 
first line, insert "to answer for a capital or otherwise 
infamous crime." The amendment of Mr. Claggett is, 
to strike out the words "capital or otherwise infamous 
crime," and insert the words "a felony," so that it will 
read, "answer for a felony." 

Cries of "Question." The amendment is put to a 
vote and adopted. 

The CHAIR. Are there any further amendments to 
the section? It is moved and seconded that Section 8 
as amended be adopted. 

Mr. MORGAN. I would like to inquire if our rules 
are such that the committee on Revision can change the 
language of this section. If that committee cannot do 
it, I think we had better not amend these sections; we 
had better strike them out or adopt them as they are, 
because we will get them all mixed up, in my opinion; 
the language will be bad. 

The CHAIR. The chair understands that the com- 
mittee on Revision is simply to change the phraseology, 
so as to put the sections in grammatical form, but not 
to change the sense. 

Mr. MORGAN. If they are allowed to put it in 
grammatical form, I think it will do. 

The CHAIR. The question now recurs on the 



276 ARTICLE I., SECTION 8 

adoption of the section as amended; what is the pleas- 
ure of the committee? 

Mr. BEATTY. I move its adoption. (Seconded). 

A MEMBER. I ask for the reading of the section 
as it stands. 

SECRETARY reads: No person shall be held for 
trial to answer for a felony 

Mr. HAGAN. That was stricken out. 

SECRETARY. Well, that is the way it reads ac- 
cording to the secretary's notes. Mr. Morgan sent up 
this amendment, to add the words "for trial/' which 
was adopted, and Mr. Hagan had an amendment to add 
after the word "held," "to answer for a capital or other- 
wise infamous crime," amended by Mr. Claggett by 
changing the words "capital or otherwise infamous 
crime" to "felony," which leaves it to read, with the 
amendment of Mr. Claggett as accepted by Mr. Hagan, 
"to answer for a felony," with Mr. Morgan's amend- 
ment adopted prior to that, adding the words "for 
trial," which makes it read: "No person shall be held 
for trial to answer for a felony." 

Mr. CLAGGETT. After the first amendment that 
was made the second amendment became incorporated 
with the other, and dispensed with the one I offered. 

Mr. MORGAN. The motion of the gentleman from 
Kootenai would have been out of order, because the 
amendment had already been adopted to insert the 
words "for trial." Of course that amendment should 
have been voted down. 

The CHAIR. Well, you didn't claim the gentleman 
was out of order. You can offer as many amendments 
as you please, but it would simply change the sense of 
the article. I think the gentleman can understand it 
right. The clerk will read it now. 

SECRETARY reads: No person shall be held for 
trial to answer for a felony, unless on presentment or 
indictment of a grand jury or information of the pub- 
lic prosecutor, after commitment by a magistrate, ex- 
cept in cases of impeachment, in cases cognizable by 



ARTICLE L, SECTION 8 277 

probate courts, by justices of the peace, and in cases 
arising in the 

Mr. HAGAN. I embraced in my motion the words 
"for trial" to be stricken out. 

The CHAIR. It does not so appear in your minutes 
you sent up here. 

Mr. HAGAN,, No sir, but I incorporate it now. The 
amendment was to strike out the words "capital of- 
fense or otherwise infamous crime," and that strikes 
out the word "trial." 

The CHAIR. The chair don't understand it in 
that way. 

Mr. HAGAN. If the rule allows, I propose to put it 
in that language. 

Mr. BEATTY. I move to strike out the words "to 
answer." 

Mr. SWEET. I think I can explain it, Mr. Chair- 
man; Judge Morgan's amendment "be held for trial" 
was adopted. A motion was then made to adopt the 
section as amended, and then Mr. Hagan moved this 
amendment. 

Mr. REID. It will then read: "No person shall be 
held to answer for a felony unless upon presentment," 
etc. 

The CHAIR. That is correct. Now there is an- 
other amendment by Mr. Beatty. 

Mr. BEATTY. I withdraw that; that was to cut 
out one of those phrases, and you have stricken out 
"for trial" already by amendment. 

The CHAIR. The question is now upon the adopt- 
ion of the section. 

Mr. AINSLIE. Do I understand that the motion of 
Jud^e Beatty is to insert after the word 

Mr. BEATTY. No, my amendment was withdrawn. 

Mr. BATTEN. I desire to offer a substitute which 
I think embodies most of these amendments, and will 
be a revision of the section without the amendments. 

SECRETARY reads : Section 8. No person shall be 
held to answer for any felony or criminal offense of any 



278 ARTICLE I., SECTION 8 

grade, unless on the presentment or indictment of a 
grand jury or information of the public prosecutor after 
a commitment by a magistrate, except in cases of im- 
peachment, in cases cognizable by probate courts or by 
justices of the peace, and in cases arising in the militia 
when in actual service in time of war or public danger; 
Provided, That a grand jury may be summoned upon 
the order of the judge of the district court in the man- 
ner provided by law. 

Mr. CLAGGETT. That brings us right back to the 
old proposition where the difficulty arose — "or any 
criminal offense" — and the effect of it, if that was 
adopted by the convention, would be, that you could 
not try a man nor hold a man for any little petty lar- 
ceny or anything of that kind cognizable by justices of 
the peace until he had first been presented by the grand 
jury or had been indicted. 

The CHAIR. We are getting these amendments in 
so frequently, I imagine the clerk cannot copy them in 
order to make his record. I think the chair will have 
to cut off amendments pretty soon. 

Mr. SHOUP. I will move to strike out the entire 
section. ( Seconded ) . 

The CHAIR. The motion before the committee is 
to strike out the entire section. (Vote). The motion 
is lost. 

Mr. MORGAN. I second the adoption of Mr. Bat- 
ten's substitute. 

Mr. STANDROD. Will the secretary please read the 
first sentence of the substitute. 

SECRETARY reads: Section 8. No person shall 
be held to answer for any felony or criminal offense of 
any grade, unless on the presentment or indictment of a 
grand jury. 

Mr. GRAY. That is what I have been fighting 
about a good while. You had the words stricken 
out, and now put them back in. These offenses — felony 
and those criminal offenses, won't ever get into pro- 
bate or justices' courts. That is one thing I shall never 



ARTICLE I., SECTION 9 279 

understand about this, information of the public prose- 
cutor; I don't believe anybody else will, and it certainly 
would not under our practice be known; but that has 
been passed upon, and I am not going to say anything 
about it. Certainly criminal offenses should be stricken 
out of that section. 

Mr. BATTEN. Criminal offenses, properly cogniz- 
able by the probate courts, under the reservation of the 
section are still provided for, and so with justices of 
the peace. A criminal offense that will be outside of the 
jurisdiction of the probate courts or justices of the 
peace would be reached by the section. I think prac- 
tice falling within that jurisdiction will still fall under 
the jurisdiction of the probate court. 

Mr. GRAY. The trouble is in both courts. Rela- 
tive to just misdemeanors, they are indictable under our 
present law, and all criminal offenses unless presented; 
it will throw out all misdemeanors, and they have got 
to be presented by indictment. It will shut out the 
probate and justice courts entirely. 

Mr. CLAGGETT. The subordinate portion of the 
section covers that. I made the same suggestion my 
friend does: "after a commitment by a magistrate, 
except in cases of impeachment, in cases cognizable by 
probate courts, by justices of the peace, and those 
arising in the militia." They are excepted in the sec- 
tion. 

The CHAIR. The question is now upon the adop- 
tion of the substitute for Section 8. (Vote). The ayes 
seem to have it — the ayes have it. The substitute is 
adopted for Section 8. What is the further pleasure of 
the committee? 

Section 9. 

SECRETARY reads Section 9 as reported. 

Mr. HEYBURN. I desire to send up an amend- 
ment. 

SECRETARY reads: Amend Section 9 by striking 
out all after the word "liberty" in the second line, and 



280 ARTICLE I., SECTION 9 

insert: "provided, that no person shall be free to vio- 
late the law of decency or morality." (Seconded). 

Mr. HEYBURN. The object in presenting that 
amendment is this: The latter portion of this section 
simply establishes a rule of evidence. It is not the 
province of this constitution to do that thing — to estab- 
lish a rule of evidence. The courts will provide for 
that, under the acts of the legislature. The part sought 
to be inserted is to get at the class of publications that 
are sometimes indulged in which are not conducive to 
good morals; and it is rather sweeping language to say 
that "every person may freely speak, write and pub- 
lish on all subjects" whatsoever he will. There should 
be some reservation ; there should be some way of hold- 
ing a man who publishes immoral or indecent publica- 
tions in the state. 

Mr. PRITCHARD. It appears to me that the gen- 
tleman is very much mistaken in regard to the province 
of this convention. It seems to me that they are able 
to do almost anything — have the right to do almost any- 
thing. 

Mr. HAGAN. I offer a substitute for the amend- 
ment. 

SECRETARY reads: Strike out all after the word 
"liberty" in the second line. 

Mr. HAGAN. The rest, I think, belongs to the leg- 
islature and and not to the constitution. It does not 
belong to the Bill of Rights, and I think after the word 
"liberty" this section should all be stricken out. It is 
almost virtually the same as Mr. Heyburn's amend- 
ment. In my opinion his amendment leaves the lan- 
guage a little chaotic. I would rather have it all 
stricken out. 

The CHAIR. The question is on the adoption of 
the substitute. (Vote). The ayes seem to have it — the 
ayes have it. All after the word "liberty" is stricken 
out of the section. The question is now upon its adop- 
tion as amended. 



ARTICLE L, SECTION 13 281 

Mr. CLAGGETT. I move its adoption. (Seconded.) 
Carried: Section 9 adopted. 

Section 10. 

The secretary reads section 10; it is moved and 
seconded that it be adopted. Carried. 

Section 11. 

The secretary reads section 11 ; it is moved and 
seconded that it be adopted. Carried. 

Section 12. 

The secretary reads section 12; it is moved and 
seconded that it be adopted. Carried. 

Section 13. 

The secretary reads section 13. 

Mr. HEYBURN. I desire to offer on amendment. 

SECRETARY reads: Strike out all after the word 
''himself ' in the sixth line. (Seconded.) 

Mr. SHOUP. I desire to offer an amendment. 

The CHAIR. Wait, gentlemen. It is moved and 
seconded to strike out all that portion of the section after 
the word "himself" in the sixth line. 

Mr. HEYBURN. Mr. Chairman, the object of 
striking this out is, it is not properly a part of the 
constitution. It simply provides a method of executing 
this section; "the legislature may provide for" etc. 
That belongs to the legislature; it is not a proper 
provision for the constitution. 

Mr. CLAGGETT. I think we had better pass it 
for a minute or two at least, to get the views of the 
committee that reported this and explain the object of 
it. It strikes me that it is a very valuable provision. I 
presume there is some provision in here with regard 
to a party being protected at all events by the process 
of the common law, which will no doubt be adopted by 
the side of the rules of the common law. It is one of 
those rules that a party defendant is entitled to have the 



282 ARTICLE I., SECTION 13 

witnesses against him produced in person, and this would 
make a change in that rule, in order to cover cases where 
witnesses for the prosecution or for the defendant are 
sick, expected to die, or where they are going to leave the 
country and cannot be got, that their testimony may be 
preserved and may be used in the shape of depositions. 

The CHAIR. Does this provision go to the extent 
that a deposition may be taken on the part of the 
prosecution ? 

Mr. CLAGGETT. (reading) "The legislature may 
provide for the taking, in the presence of the party 
accused and his counsel of depositions of witnesses in 
criminal cases, other than in cases of misdemeanor or 
treason, where there is reason to believe that the wit- 
nesses" etc. "at the trial." I don't think we ought to 
rush over it hastily. I don't know — I would like to 
hear from the committee. 

Mr. STANDROD. Mr. Chairman, the object of this 
section is, not to conflict with the constitutional right 
that a defendant may have in a criminal prosecution, 
that we hear urged all the time in the courts under 
the statute we now have. Permit me to say that it is 
nothing new, inasmuch as almost all the states provide 
for the taking of depositions conditionally, and this is 
intended, in a case where the party is held for trial, 
and one witness, a very important witness, either for 
the defendant or for the prosecution, might be lost by 
continued delay, and the people or the defendant might 
be deprived of his testimony on that account. There 
might be an instance where a man was charged with a 
capital offense, where his defense depended upon one 
witness, and this section is intended to provide for 
the taking of the evidence of that witness. It is the 
practice now under our statutes to do that condition- 
ally, and it is no innovation or new practice. That is 
the reason this section so provided; that is the object 
of it. It sometimes occurs that a party will be per- 
mitted to go unpunished on account of the absence or 
death of one witness, — the main witness in the case. 



ARTICLE L, SECTION 13 283 

I want to say here that there is no objection to it at 
all. As a matter of course, unless in case of his in- 
ability, sickness, death, or something of that kind, it 
is best to produce the witness at the trial, and as a 
matter of course he would be produced if possible; this 
is only in instances where it is impossible. It is every- 
day practice, done frequently all over the country, 
where depositions are taken conditionally in the pres- 
ence of him and his counsel. 

Mr. MORGAN. Not for the prosecution, Mr. Stand- 
rod? 

Mr. STANDROD. I think so. I know some in- 
stances where depositions have been read, where they 
were taken in the presence of the defendant and his 
counsel, — have been read on the trial against him. I 
think our statute provides that a deposition may be 
taken by the prosecution. 

Mr. CLAGGETT. I will offer an amendment to the 
amendment, that the words "or other cause" be stricken 
out, in the line next to the last. This authorizes a 
deposition to be taken for any reason, or lack of reason, 
in criminal cases. I don't think it should go that far. 
Then it will read; when there is reason to believe that 
the witness from inability will not attend at the trial, or 
be able to attend. 

The CHAIR. Do I understand that you offer that 
as an amendment to the amendment? 

Mr. CLAGGETT. Yes. 

The CHAIR. Hand it to the clerk. 

Mr. CLAGGETT. I will withdraw the amendment 
until I can write it. 

Mr. HEYBURN. I desire to suggest this. I agree 
with the gentleman, (Mr. Standrod,) that this is a 
general and proper provision. Nearly all the states at 
one time or other have enacted a provision for the pres- 
ervation of testimony, and it is right there should be 
such a provision. This only provides to give the legis- 
lature the right to enact such a provision. The legisla- 
ture has that power now and hereafter under any con- 



284 ARTICLE I., SECTION 13 

dition of affairs, unless it is specifically taken from 
them, and for that reason it seems to me that this 
would only be a suggestion to the legislature that the 
legislature may do this, but it having the inherent 
power to do it in any event, it is useless to put it in 
the constitution, and necessarily place it open to this 
criticism, that after this, where there is reason to be- 
lieve that a witness, from inability or other cause, — it 
may be because it was a wet day and he didn't want to 
come, — that in that case a man should go to trial with- 
out being confronted by this witness, or confronted 
by him on paper, when he is under all law entitled to 
be confronted by his accuser or the witness face to 
face; so that it is a violation of that principle, as it 
stands now, that the defendant or other accused is en- 
titled to take advantage of. Now the legislature is left 
under its inherent power to provide for that thing. 
They will provide for it undoubtedly, and will say under 
just what circumstances this testimony of this witness 
may be used, but we cannot go into details sufficiently 
in the constitution to provide for these little things, 
and say that in case of inability to procure the atten- 
dance of a witness because he is beyond seas, and all 
those details usual in such cases, — the constitution I 
say, cannot go into these details, so we had better leave 
it to a field where they can, and that is the legislature; 
they will make provision such as is usual in such cases 
to preserve testimony in cases of this kind. I think the 
whole thing can be stricken out, because it is invading 
the legislative domain first, and second, because in its 
present form it is objectionable. 

Mr. HAGAN. I agree with the gentleman from 
Shoshone that it belongs to the code of laws to be passed 
by the legislature. They have authority to pass that, 
as he says; it is their duty to pass it, and it is not the 
province of the constitutional convention to put it in 
the constitution. It is a part of the code of statutes of 
the state, and I am therefore in favor of the amend- 
ment. 



ARTICLE L, SECTION 13 285 

Mr. MORGAN. I call the attention of the gentle- 
man from Shoshone and of the convention to the fact 
that those words are left out which are usually inserted 
in constitutions, "to be confronted with the witnesses 
against him." As I understand it, under constitutions 
as they ordinarily read, no deposition can be taken in 
criminal prosecutions in favor of the prosecution. It 
provides in our statute, and various other statutes pro- 
vide, that the defendant may have the testimony of a 
witness taken by deposition, but I do not think there is 
any provision provided which gives the state power to 
take a deposition against the defendant, for the reason 
that nearly all constitutions have this clause, that the 
defendant shall have the right to be confronted by the 
witnesses against him. Those words are left out of 
this clause, and intentionally, in order that the legisla- 
ture may provide, or that the constitution itself here 
may provide that the depositions of witnesses may be 
taken in criminal cases on the part of the state. I de- 
sire this convention to understand this thing perfectly. 
It is a departure, as I understand it, from the ordinary 
law in that regard. I do not think other constitutions 
allow taking depositions on the part of the state against 
the defendant. 

Mr. HEYBURN. Would it not be competent for the 
legislature to enact a provision for taking depositions 
against the defendant, in the absence of any power 
conferred upon it by the constitution, if there was no 
prohibition? 

Mr. MORGAN. Yes, but not if those words were in 
the constitution; "have the right to be confronted by 
the witnesses against him." This would prevent the 
passage of a law of that kind, as I understand it, and 
those words are left out. 

Mr. HEYBURN. I would not care about their be- 
ing left out, if there is no question that they have 
this power. 

Mr. MORGAN. Yes, the legislature will have the 
power. And I desire to say in explanation that that is 



286 ARTICLE I., SECTION 13 

a departure from ordinary constitutions, but I think it 
is a good one. 

Mr. STANDROD. The object in drawing this part 
of the section was intended to avoid any controversy, 
when these matters come up in court, as they do every 
day. There are some attorneys that never understand 
the difference between the delegation of power by the 
constitution of the United States to the national legis- 
lature, and by the constitution of a state to a state 
legislature. In order to settle this question, and have 
it settled in the constitution, is the reason why this 
section was drawn. It seems to me it is very necessary, 
and will very frequently arise in our criminal practice, 
so as to enable either side to produce their witnesses 
and have their testimony submitted to the jury. It was 
intended to avoid this discussion as to the constitutional 
right of being confronted by their witnesses, 

Mr. HAGAN. Do I understand the committee 
claim the right of the state to take depositions in a 
criminal case? 

Mr. STANDROD. I have not examined that, but 
I think the state has just as much right as the defen- 
dant has. 

Mr. HAGAN. Why, that is prohibited by the con- 
stitution of the United States. How is a man going to 
be confronted by his witnesses when he is in jail? Are 
you going to hold him against his will and take deposi- 
tions all over the country? Unqualifiedly, you can't do 
it. If the object is to take depositions for the de- 
fendant, I say, as the gentleman from Shoshone's 
amendment says, strike that out and allow the legisla- 
ture to provide the machinery for it. It will take more 
than this to provide for that machinery. But as to 
taking depositions on the part of the state, of course I 
utterly oppose that. 

Mr. GRAY. As I have been saying before, I am 
opposed to so much being put in this article that we are 
called upon to meet. We see the effect of our labors 
right now, — right at the door. Now I say that this is 



ARTICLE I., SECTION 13 287 

really the province of the legislature. For conscience' 
sake let us, — as the legislative committee have made 
provision for the creation of a legislature, let us leave 
them a little something to do, and I think it would be 
much better to leave these matters, which are really 
matters of detail, of practice, to the legislature. I think 
the amendment should be adopted and that portion 
stricken out. 

Cries of "Question." (Vote.) 

The CHAIR. The ayes have it; it is carried. 

Mr. SHOUP. I move to amend by inserting after 
the word "himself" the words "nor be deprived of life, 
liberty or property without due process of law." 

Mr. HEYBURN. I ask to have the section read as 
amended, — that portion of it. 

SECRETARY reads: No person shall be twice put 
in jeopardy for the same offence; nor be compelled in 
any criminal case to be a witness against himself, nor 
be deprived of life, liberty or property without due 
process of law. 

Mr. SWEET. I would like to call the attention of 
Mr. Shoup to the next section, whether or not the 
taking of property is not covered by that section. 

Mr. SHOUP. The committee proposes to offer a 
substitute for the next section. 

Mr. GRAY. I understand that to be a purely con- 
stitutional provision of the United States. I don't sup- 
pose it will do any hurt; I don't see any particular good 
of it. 

Mr. HEYBURN. It seems to me the first section 
in the Declaration of Rights, — section 1, covers that 
point exactly; because it is a declaration of rights, and 
says; "All men are by nature free and equal and have 
certain inalienable rights, among which are enjoying 
and defending life and liberty, acquiring, possessing and 
protecting property, pursuing happiness and securing 
safety." That covers all these propositions. 

Mr. MORGAN. Mr. Chairman, the amendment 
offered by the gentleman from Custer is the same as the 



288 ARTICLE I., SECTION 14 

words that are inserted in nearly all constitutions at this 
very place, and it is in the constitution of California at 
this place; 1 "nor to be deprived of life, liberty or prop- 
erty without due process of law." I think it is proper. 
(Vote and carried.) 

The CHAIR. What is the further pleasure of the 
committee? 

Mr. CLAGGETT. I move the adoption of the sec- 
tion as amended. (Seconded.) Vote and carried. 

Section 14. 

The secretary reads section 14, as reported to the 
committee. 

Mr. HAGAN. I have an amendment. 

SECRETARY reads: Strike out all that part of 
Section 14 which reads as follows: "Private property 
shall not be taken for private use, unless by consent of 
the owner, except for private ways of necessity and for 
reservoirs, drains, flumes or ditches on or across the 
lands of others, for agricultural, mining, milling, do- 
mestic or sanitary purposes." Also, strike out the 
words "or private" in line 5 of Secetion 14. 

Mr. HAGAN. Now, Mr. Chairman this is, in this 
country a very important provision. The idea is cer- 
tainly new, — to allow private property to be taken for 
private use. I do not know any state in the Union that 
has any such provision, that private property, — -my 
property, shall be taken for the benefit of my neighbor 
against my will, confiscated or even forfeited. It is 
something unusual, uncalled for, to put into a consti- 
tution. The application of the doctrine of eminent 
domain itself is a harsh measure, even for public uses. 
Now so far as water rights are concerned, there is a 
report of the committee here upon the table now which 
makes the use of water a public use. That is very 
proper, when it comes up in its order, but the idea of 
allowing private property to be used, to be condemned, 



-Art. 1, See, 13, Cal. Const. 1879. 



ARTICLE I., SECTION 14 289 

to be bought, to be sold at the instance of a private 
proprietor adjoining me, or anywhere near me, is in 
my opinion wrong and should not be tolerated, especially 
as it is with us in a mining country. Any gentleman 
here that is from a mining country knows the force 
and effect of that provision; where private property 
can be taken for private use, for agricultural, mining, 
milling, domestic or sanitary purposes; they know how 
the mining interests of this country would be damaged by 
it and embarrassed in every regard. California at- 
tempted to pass a law of that kind, and it was recently 
held unconstitutional by their supreme court. 1 We 
have the same statute now in this territory, 2 and 
copied from the California statute which was held un- 
constitutional. It has been obviated in two states, I 
believe by making the use of the waters of the country 
a public use under the supervision of the state, where 
it should be, and therefore obviate the necessity of this 
statute. Outside of that question, I know of no class 
of property that should be subject to private use or 
private confiscation. The land proprietor or mine 
owner, of owner of a mill, has no right to run his ditches 
and tunnels through my works and destroy them against 
my will, or even at any price, because he can never 
fully compensate me for my property or my work. I 
speak of this coming from a mining country, protesting 
that no such law should exist, either in the organic or 
in the statutory law — with which we have no dealings now 
— that private property should in no instance in this 
country be subject to the will or dominion of another 
party who seeks to confiscate it. I say I have a right 
to hold my land, to hold my mine or my works against 
the adjoining proprietor, though he give me millions of 
dollars for it; that I should not be compelled to sell my 
property to him in such a manner, nor should I be com- 



1 — See Consolidated Channel Co. v. Central Pac. R. Co., 57 Cal. 

269. 
2 — Subd. 4, Sec. 5210, Rev. Stat. 1887 (Same Sec. and Subd. in 

Rev. Codes.) 



290 ARTICLE L, SECTION 14 

pelled to stand idle and see my property or my work de- 
stroyed. That is all important in a country like this, and 
I think that statute is wrong; it should not go either 
into the constitution or upon the statute books. 

Mr. MORGAN. To the honorable gentleman who 
was last upon the floor, I would say this, that in the part 
of the country where we live it is necessary to provide 
for irrigating lands. It is impossible to do it unless 
we provide some means of getting across the land of 
the proprietor above you. How shall we do it? It is 
certainly an innovation, it is something we have not 
had in the constitutions heretofore. It is true that 
California attempted to do this by a law, and so have 
we, by putting a law upon the statute book, but this 
law has been held to be unconstitutional in California, 
because the constitution did not provide for it. Now 
we desire to provide for it in our constitution so that 
we can do it. I do not think our statute is good for any- 
thing unless we have something in the constitution 
supporting it, and this clause is inserted in the con- 
stitution so that we may provide by law for taking the 
ditches of persons who hold lands below across the 
lands of proprietors above. Where the streams have 
but little fall, it will be seen with a moment's thought, 
that if a man gets high up on a stream and takes up 
160 or 640 acres of land, as he may do under the 
desert act, that those acres of land must remain forever 
unimproved below that section, unless there is a pro- 
vision in the law permitting a person or persons living 
below to cut a ditch across his land. If they can pro- 
vide for it in any other way, I am perfectly willing 
they should do so; I am not very tenacious about that. 
It is not a public use where a man desires to take his 
ditch across the land of another for his own advantage, 
— that is not public use, it is a private use, and we 
think it must be provided for in the constitution. If 
it is not done, it is impossible to cultivate and improve 
the arid lands of this part of the territory. 

Mr. STANDROD. I have prepared an amendment 



ARTICLE I., SECTION 14 291 

and sent it to the secretary, and I offer this as a sub- 
stitute. 

The CHAIR. The chair cannot entertain this un- 
less the attention of the chair is called to the fact 

Mr. STANDROD. I am now calling the attention 
of the chair to the amendment. 

The CHAIR. What is the matter before the house? 

SECRETARY. It is on the amendment of Mr. 
Hagan. 

Mr. REID. What is that? 

(The secretary reads Hagan's amendment, as above 
given.) 

The CHAIR. There is an amendment sent up here 
to Sec. 14 of the Bill of Rights; I think you will have 
to take a vote on this. There is another amendment, 
sent up by another person,- — I don't know who offered it, 
that private property shall not be taken or damaged, 
for public or private use, unless by consent of the 
owner. 

Mr. PARKER. I have submitted my substitute 
with the idea of preserving the individual rights of 
every citizen of this territory. In Sec. 1 of this Declara- 
tion of Rights which you have now adopted, I find that 
"all men are by nature free and equal and have certain 
inalienable rights, among which are enjoying and de- 
fending life and liberty, acquiring, possessing and pro- 
tecting property, pursuing happiness and securing safe- 
ty." Now in this Sec. 1 you give us, the individuals of 
this community, the right to acquire and possess prop- 
erty, but in this Section 14, as it is drafted now, these 
rights are taken away. This convention, in submitting 
this section in its present form, is in the position of a 
cow which gives a bucket of good milk and then kicks 
it over. I only arrived here this morning, Mr. Presi- 
dent, and have not had time to collect my ideas on the 
subject, but I will read to you a few extracts from a 
book, one of the latest authorities bearing on this sub- 
ject of the rights of individual members of the commu- 
nity. 



292 ARTICLE I., SECTION 14 

Mr. MORGAN. I wish to ask the gentleman a 
question. 

Mr. PARKER, (reading) "What is a 'public use,' 
within the meaning of this constitutional provision? 
Is it anything that the legislature may please to specify? 
If land and water be required for a canal, the private 
owner must surrender his estate at the bidding of the 
legislature, and yet the state may have no proper 
authority to construct that canal. For if the work in 
question be not the proper creature of the sovereign 
authority, — if it be not necessary to the public defense, 
but only a matter of convenience to private business, 
the state is departing from its true sphere of action, and 
transcending its lawful authority in setting about the 
work." And I deny the right of this convention to 
place in this constitution which we are now framing 
any provision which shall take away, without his indi- 
vidual consent, what he has earned by his own labor. 
I claim that the individual in such an instance is not 
the subject of legislative authority, (continuing read- 
ing) "It is difficult to reverse the old order of sovereign- 
ty, to set up the individual man and to curb the omnipo- 
tence of the state. But nothing appears more reason- 
able to my own mind that a humble man in possession 
of a well earned estate, may call in question the right 
of any legislature to take away his property, either in 
virtue of the much abused power of eminent domain, 
or by way of taxation. He may of right demand that 
the purpose to which his property is to be devoted by 
the public shall be of such a character as subserves the 
true ends of state authority. He is not the subject of 
arbitrary power, nor ought he to be the victim of a 
majority." 

I will read now one extract from Mr. Blackstone: 1 
The doctrine is thus laid down: "So great, moreover, 
is the regard of the law for private property, that it 
will not authorize the least violation of it; no, not even 



*■ — Cooley's Blackstone's Commentaries, 4th Ed. Sec. 139. 



ARTICLE I., SECTION 14 293 

for the general good of the whole community. If a new 
road, for instance, were to be made through the grounds 
of a private person, it might perhaps be extensively 
beneficial to the public; but the law permits no man, 
or set of men to do this without consent of the owner 
of the land. In vain may it be urged, that the good of 
the individual ought to yield to that of the community; 
for it would be dangerous to allow any private man, or 
even any public tribunal, to be the judge of this com- 
mon good, and to decide whether it be expedient or no. 
Besides the public good is in nothing more essentially 
interested, than in the protection of every individual's 
private rights, as modeled by the municipal law. In 
this and similar cases the legislature alone can, and 
indeed frequently does interpose, and compel the indi- 
vidual to acquiesce. But how does it interpose and com- 
pel? Not by absolutely stripping the subject of his 
property in an arbitrary manner; but by giving him a 
full indemnification and equivalent for the injury there- 
by sustained." I submit my substitute. 

The CHAIR. The question is upon the adoption of 

the substitute of the gentleman from Kootenai. Mr. 

Standrod, do you present this as a substitute for that 
of Mr. Hagan? 

Mr. STANDROD. Yes. 

SECRETARY reads : To amend Sec. 14 by striking 
out all of said section to the words "private property" 
in line 4, and insert the following: "Private property 
shall not be taken or damaged except for a public use 
nor without just compensation therefor. The taking of 
private property for public or private ways of necessity, 
or for reservoirs, drains, flumes, ditches, pipes, dumps, 
tunnels, shafts or other easements, on, through or 
across the lands of others for agricultural, mining, 
milling, domestic or sanitary purposes, shall be deemed 
a taking for public use," continuing said section from 
the word "such" in line 5 to the close thereof. 

The CHAIR. You have heard the reading of the 



294 ARTICLE I., SECTION 14 

substitute offered by the gentleman from Oneida; what 
is the pleasure of the committee? 

Mr. MORGAN. I second the substitute. 

Mr. AINSLIE. I do not see that this substitute 
offered by the gentleman from Oneida differs materially 
from that incorporated in the printed bill. It endeavors 
to leave the impression that the taking of private prop- 
erty for these purposes specified, for private ways of 
necessity, for drains, flumes, etc., is defined so that it 
shall be a taking of private property for public use, in- 
stead of taking private property for private use. It is 
like two and two make two, instead of two and two 
make four. You cannot take private property for pri- 
vate use. You may take private property for public 
use by a mere declaration to that effect, but it is absurd, 
under that amendment, or even under this bill, to say 
that if I own a lot in this city, that is a lot higher than 
another man's lot below me, he can come in under this 
bill and make a reservoir in my front yard to supply 
his house with water; but still under the specious 
statement of the gentleman from Oneida it would be 
taking my private property for a public use, when it 
could not be used by anybody but the fellow that owns 
the lot. Under that any neighbor can be harrassed 
against his will. It would be a bill fraught with more 
litigation, with a bigger harvest for lawyers, than any 
section that could be incorporated in the statutes of 
Idaho, to say nothing of your constitution, and I know 
of no law or constitution in the United States where 
you can take private property for private use. You 
can't compel me to sell my property, if it isn't worth 
$50, even for $500, if I don't see fit, and I say it is 
opening a field for litigation, and unnecessary, and 
productive of more or less injustice against others, 
under the supposition that it is for a public use, when 
by no fair reason or logic can you make it a public use. 

Mr. MORGAN. Let me ask the gentleman a ques- 
tion. The gentleman must certainly recognize the dif- 
ficulty under which men labor under such circumstances. 



ARTICLE I., SECTION 14 295 

If he can suggest any remedy for it let him do so, or 
we must allow the lands which are below others to lie 
idie forever. 

Mr. AINSLIE. I don't propose to put the property 
of every citizen in Idaho Territory to the hazard ot 
being taken for the benefit of a lot of scattering set- 
tlers who are engaged in farming. It may work a 
hardship in some cases, but we propose to legislate for 
the public good of the people of the whole territory, 
and not for one class of individuals. 

Mr. STANDROD. I fear the gentleman from Boise 
does not understand what is intended by this section, 
or else he would not be so broad in his allegations. 
Theie is no attempt here to create litigation, or to take 
private property for private uses where it is unneces- 
sary In fact the object of this section is to avoid liti- 
gatkn, to settle this question, that has come up in the 
courts, and is now continually coming up in court almost 
every term throughout this country, — that is, to be 
argued. I will read this a little more carefully: "Pri- 
vate property shall not be taken or damaged, except for 
a puHic use, nor without just compensation therefor. 
The iaking of private property for public or private 
ways of necessity, or for reservoirs, drains, flumes, 
ditchts, pipes, dumps, tunnels, shafts or other ease- 
ments, on, through or across the lands of others, for 
agricultural, mining, milling, domestic or sanitary pur- 
poses, shall be deemed a taking for public use." The 
woid "necessity" is used there as a matter of course. 
There would have to exist a necessity before private 
pnx>erty could be taken at all. "Or for reservoirs, etc. 
— siall be deemed a taking for public use." The object 
of ;his section is to declare what a public use is, in order 
to settle it in the courts. It has always been contended 
in the courts that the taking of water for the irriga- 
tim of lands, where there are one, two or three men 
desiring to take it across their neighbor above them, is 
a private use, and consequenty cannot be done, and it 
has given rise to more litigation and more trouble in 



296 ARTICLE L, SECTION 14 

trying to irrigate lands in sections of the country such 
as this, than anything else. Now I have contended 
that this convention has the power to say what a public 
use is. It it true that it is limited, we all agree, to these 
matters of necessity. This country has got to be irri- 
gated. A man has to have his ditches and flumes in 
order to procure water. I do not believe there is a 
gentleman here but would willingly admit that there must 
be some law providing for this necessity. This merely 
defines what a public use is; that is what it is intended 
for, limited as a matter of course to those instances 
where we all say and all admit that the necessity 
exists. 

It will prevent this question coming up hereafter, 
because it positively defines what a public use is, — that 
is the intention of it. 

Mr. CLAGGETT. I will not trespass on the time of 
the committee long. It seems to me we are arguing a 
good many of these propositions from a wrong stand- 
point. It seems to be considered by some of the mem- 
bers of the convention that it is a sufficient reason why 
a power should not be given to the state, to point out 
that in some particular way that power may be abused. 
That is not a logical argument in the science of g)vern- 
ment. There never was a power conferred upcn any 
government upon the face of the earth that wis riot 
subject and capable of being abused. The only thing 
that wise statesmanship is ever directed to is, to guard 
those particular instances wherein power is most likely 
to be abused, and to build around them bulwark of 
limitation and restriction. It does not follow thai be- 
cause this power is conferred upon the state, that the 
state is going to work to scalp its inhabitants, or per- 
petrate frauds, or authorize men to go and take poses- 
sion of other people's houses, because that won't do. 
This provision, as it is provided for in the substitute 
offered by the gentleman from Oneida is absolutely 
necessary, unless we want to leave the whole domain of 
this new state practically undeveloped; and I will 



ARTICLE I., SECTION 14 297 

plain the reason why. It appears that Congress, as I 
have said before, is our local sovereign, and as such 
local sovereign it has seen fit to provide in the mineral 
acts of 1866 1 and 1872 that so far as the public lands are 
concerned, a free right of way is given to any person to 
build across the public lands ditches and irrigating 
canals to use for mining, milling and agricultural pur- 
poses; and it also provides that in the territory private 
property may be taken upon just compensation being 
made therefor. Now when we cease to be a territory 
that state of things under which we are now proceeding 
and by means of which we are now condemning the 
property that is absolutely necessary to be taken for 
these purposes, will cease; and if we simply put in our 
constitution the broad proposition that private property 
shall not be taken except for public use, and say noth- 
ing more, why, then the legislature will be hampered, 
and cannot declare anything a public use except such 
uses as at the time the constitution was adopted were 
known and recognized in law as being public uses; and 
therefore your state government will not have the 
power to provide in any way, shape or form for the con- 
demnation of rights of way for irrigating ditches, 
mining ditches, mining easements of any kind whatever. 
We get all of that, it appears, under congressional 
legislation, which will cease to operate upon the terri- 
tory, except in the matter of the public lands; and if 
some other provision of this kind is not put in this 
constitution, it will simply be tying up the whole re- 
sources of the country. It seems to me the substitute 
which is offered — I have heard it read twice by the gen- 
tleman from Oneida, — covers the case. It simply goes 
on and provides that for those specific purposes, the 
building of irrigating ditches, canals, flumes, pipes, 
reservoirs, for agricultural or sanitary purposes, for 
agriculture, mining, — or whatever the provisions may 
be there; I don't remember them all, — that those shall 



l — Sec. 9, 14 U. S. Stat, at Large, 253. 



298 ARTICLE I., SECTION 14 

be deemed and taken to be a public use. We reported 
here this morning, — the committee on Agriculture, — 
with regard to water, in which we declare that all the 
waters of the state which are to be distributed, — of 
course it has not been before the convention except by 
being read, — that all the waters in the state heretofore 
appropriated, or which may be hereafter appropriated 
for agricultural purposes in the way of sale, rental or 
distribution, may be declared a public use. It requires 
the action of this convention to make it a public use. 
It will require the action of the convention to make 
these other uses public uses, and therefore the absolute 
necessity of the incorporation in this constitution of 
some such provision as this suggested by the gentleman 
from Oneida. Now my friend from Boise seems to 
think that in case there is any such provision as this 
in the law it is going to give rise to all kinds of litiga- 
tion. I would respectfully refer my friend to the fact 
that we have got it under our territorial statutes, and 
where is the litigation that has grown up in consequence 
of it? It was passed two years ago. 1 Condemnation 
may be made for the purpose merely of any necessary 
easement, a dump, or the location of hoisting works, 
or running a tunnel, and no man should be permitted 
to stand like a dog in a manger, simply because he hap- 
pens to have possession of adjoining property, practic- 
ally of small value, and put any outrageous price, $500, 
or hundreds of dollars of valuation, upon it, and levy 
blackmail upon the industries of the country. In all 
cases where easements are demanded for agriculture, 
the owner of the land should be required to give them, 
on the payment to him of the amount of the value which 
the land taken possession of amounts to. I consider 
this one of the most important matters we have coming 
before us, — the very root of our prosperity in the 
future. 

Mr. GRAY. I fully agree with the gentleman last 



i— Sec. 5210, Rev. Stat. 1887. 



ARTICLE I., SECTION 14 299 

upon the floor, that the necessities of our country are 
such that it certainly requires something to be done. If 
we let this matter go, without mention or authority given 
in the constitution, which is easily covered, we may as 
well say good-bye, our country amounts to nothing, those 
that live under the head of the stream have it all, and 
a man standing by says; no, this is my land, you must 
not cross it. But while I will support the substitute, 
it is because I think that it in many cases may be 
regarded as much a public use as a public right. I can 
find cases where a ditch crosses a man's land and goes 
down and is used by twenty men, and it is regarded 
undoubtedly to a certain extent as a private use, but if 
we are taking their cases together, and it is the only 
way for them to get it, we then call it a public use, and 
I do not see any impropriety in naming it so, so that 
when it is used for purposes of that kind it shall be 
deemed a public use; and I say, under the conditions 
of this country, perhaps under some circumstances it 
may be making an innovation upon the law, it may be 
going further than generally required under the law 
and than it is allowed to go, but I say the necessities of 
the case require that something must be done. I think 
the law must yield, — even the stubbornness of the law 
must yield, for the necessities of a country like this. I 
will say positively that had there not been any law of 
this kind, — well, the gentleman from Shoshone said it 
was two years that we have had it, and I really don't 
know that there has been any litigation under it, or at 
least any more, and without it I certainly say that these 
desert claims cannot be cultivated. There are ditches 
going out all the time, and without that, a stubborn 
man upon the head of a stream can prevent the settle- 
ment of thousands and thousands of acres of land, and 
some have attempted to do it even now, although I will 
say that it has not been in litigation to any extent. But 
I do hope, for our safety and protection, and for the 
benefit of our country, that there will be something 
put in this constitution. If not, I say that these desert 



300 ARTICLE I., SECTION 14 

claims win remain unproductive and uncultivated. I 
hope the motion will prevail. 

Mr. HEYBURN. I desire to send up an amend- 
ment. 

SECRETARY reads: Amend Sec. 14 by inserting 
after the word "court" in the 7th line, "under such 
conditions as the court shall direct," and after the 
word "the," where it first appears in the 7th line, in- 
sert the words "use of." 

The CHAIR. I would like to state to the committee 
that my impression is, that where a substitute and an 
amendment are offered, before that section should be 
amended the substitute should be adopted and then 
amend the substitute after it is adopted. 

Mr. HEYBURN. That is the idea,— all that part of 
it that is identical in the substitute and in the original, 
and I was about to send it up when the substitute 
went up. It may rest, however, until after the sub- 
stitute is disposed of, and the amendment can then be 
considered. 

The CHAIR. Are there any more remarks upon 
the substitute to the original amendment? 

Mr. HAGAN. My amendment was to strike out. 

The CHAIR. Your motion was to strike out, and 
the gentleman sent up a substitute. 

Mr. STANDROD. His was an amendment to the 
section. 

The CHAIR. Here this comes up as a substitute to 
the original amendment; the original amendment was 
to strike out all such portions of the section after cer- 
tain words, and this comes as a substitute to that. Now 
my impression is that the gentleman has no objections 
to this substitute for the amendment, but if the gen- 
tleman insists upon his amendment to strike out, I 
think that motion should prevail first, under this rule, in 
the case of a substitute to an original amendment. 

Mr. CLAGGETT. Rule 38 covers it. (reading) "A 
motion to strike out and insert shall be deemed divis- 
ible: and a motion to strike out on a division being 



ARTICLE I., SECTION 14 301 

negatived, or a motion to insert being decided in the 
affirmative, shall be equivalent to agreeing to a matter 
in that form, but shall not preclude further amendment; 
provided that substitutes for pending propositions shall, 
for the purposes of amendment, be treated as original 
propositions." In other words, a motion to substitute 
sweeps the whole thing up and stops everything until 
that is disposed of. 

Mr. HAGAN. Does not that bring my motion to 
strike out up first? 

Mr. CLAGGETT. No, it says a substitute stands 
as an original proposition. 

Mr. HAGAN. Certainly, and my motion to strike out 
could not then be amended. 

Mr. CLAGGETT. A substitute sweeps all amend- 
ments aside, and stands as an original proposition on 
the whole matter, — the original section and the amend- 
ments both. 

The CHAIR. The only way to do is to adopt this 
substitute, and then, if the committee desires, an amend- 
ment to the substitute would be in order; and I think 
this motion to substitute the following to the section 
would be proper, but this substitute does not substi- 
tute anything for the entire section. 

Mr. STANDROD. Yes, it does. 

The CHAIR. Then the gentleman is correct; that 
does away with any amendment to strike out, as I 
understand the rule. 

Mr. HAGAN. He has proposed an original section? 

The CHAIR. He proposes the substitute as an 
original section. 

Mr. HAGAN. I would like to have it read. 

Mr. RE ID. If that be the case, all in the world a 
man would have to do to defeat any amendment offered, 
would be to offer a substitute, and you never could get 
p. vote. 

Mr. AINSLIE. I rise to a point of order. How can 
a substitute be offered for a motion to strike out? 

The CHAIR, When this substitute was sent up, as 



302 ARTICLE I., SECTION 14 

a substitute to the original motion, I did not know, — 
didn't understand, at any rate, until it was reached. 
The amendment was sent up, and the substitute was 
sent up, without any announcement what it was until 
inquiry was made, and then the gentleman stated it 
was a substitute to the motion to strike out; now I find 
out it is a substitute to the original section. 

Mr. REID. Rule 31 provides that (reading) "All 
questions, whether in committee or convention, except/ 
privileged questions, shall be put in the order in which 
they are made," etc. I make the point of order that 
the gentleman from Kootenai has a right to have his 
amendment voted on before the substitute is voted on. 

Mr. HAGAN. That is what I claim, Mr. Chairman. 

The CHAIR. The first question then would be in 
order, — to strike out. 

Mr. CLAGGETT. Rule 31 just lays down the gen- 
eral proposition, but rule 38 covers all the propositions 
which we now have before us under the head of amend- 
ments. 

The CHAIR. It says that "a motion to strike out" 
etc. "shall be equivalent to agreeing to a matter in that 
form," "provided that substitutes for pending propo- 
sitions shall, for the purposes of amendment, be treat- 
ed as original propositions." 

Mr. REID. I make the point, Mr. President, that 
the rule only says this, that a motion to strike out and 
insert is divisible; that is, we can have a division on it, 
and further, if it is agreed to, it is equivalent to agree- 
ing on the matter in that form, and then comes the 
substitute matter to be acted on; but rule 31 estab- 
lishes the method of procedure when a number of 
amendments or substitutes are offered. 

The CHAIR. Now the question is before the con- 
vention, as I understand it, if this is a substitute for a 
motion to strike, it should be in order, and I will make 
that decision, subject to appeal. 

Mr. HAGAN. Rule 37 says no motion on new mat- 
ter shall be brought in under color of amendment. 



ARTICLE I., SECTION 14 303 

Mr. MORGAN. That is not under color of amend- 
ment, to strike out, at all. I think, Mr. Chairman, the 
substitute of the gentleman from Oneida is in order for 
this reason ; if it is adopted it does away with the neces- 
sity of the motion of the gentleman from Kootenai. If 
we adopt this substitute it carries with it the amend- 
ments and finishes the whole thing. I think the sub- 
stitute takes the place of it, where it is offered to the 
whole section, it carries with it the motion to amend 
the section; it strikes out, and inserts another section 
entirely. Both the motion of the gentleman from Kootenai 
prevails to strike out, and the motion of the gentleman 
from Oneida prevails to substitute. 

The CHAIR. Well, his substitute would be in order 
then. 

Mr. BATTEN. I think those two rules, 31 and 38, 
can be reconciled. The proposition before the commit- 
tee now is an original proposition ; it stands in lieu of 
the original section, but before it can be considered all 
amendments must be first disposed of, it seems to me. 
I think there should be some stress laid on the word 
"original" in that rule. It takes the place of the original 
section and should be last considered. All amendments 
that have been put in should be disposed of in order, 
in compliance with rule 31. 

The CHAIR. That leaves the motion to strike out 
first in order; the question is upon the motion to strike 
out. 

Mr. HAGAN. I have but a few words, Mr. Chair- 
man, to say on this motion. The only argument I have 
heard against it is on the question of preparing to pro- 
tect men in the use of water for irrigating and domestic 
purposes. If they have got the protection of law, with- 
out a constitutional provision, then what is the use of 
this? I propose to advocate at the proper time the pro- 
tection of water rights. I propose to make the waters 
of this country a public use, and that every man shall 
be protected in the appropriations he has made and the 
appropriations of water he desires to make for the 



304 ARTICLE I., SECTION 14 

purpose of agriculture. But I oppose, and have always 
opposed all my life, and as every one has opposed in 
every state constitution ever made that I know of, the 
idea of taking private property for private use. If the 
gentleman from Shoshone were to go before his people 
and tell them they could take his lands and his works 
for their private use, and that it was engrafted in this 
constitution, I do not believe he would get forty votes 
in his county. It would impair the value of the mines, 
it would embarass mining proceedings, but above all 
that I take the broad ground that no man has a right 
to force me to sell my property; I don't care if it not 
worth $50, I don't want to be compelled to take a mil- 
lion by a forced sale. Under the head of Water Rights 
water has been protected in Colorado, it has been pro- 
tected in California, it has been protected in Nevada, 
but still there is no provision in the constitution allow- 
ing private property to be taken for private use. It is 
a doctrine that is anti-republican in every respect; it 
is contrary to the right to hold property, to enjoy prop- 
erty, or to pursue happiness. Where is the limit, — 
even of the agricultural ditch, as was said, for private 
use? Where is the limit that the landed proprietor 
would find for his neighbor who wanted to run over 
him? There should be regulation on the part of the 
state for irrigating purposes, as there is now, as there 
will always be. Did not the report this morning, under 
the head of irrigation, protect that? I have before me 
a resolution that I intend to offer at the proper time, 
to protect the rights of parties in the use of water; 
but I oppose that from the very fact that these people 
in the state of Idaho, as we call it, will never sanction 
a doctrine that will allow private property to be taken 
for private use. It is a doctrine that I know my people 
whom I represent will not endorse; they cannot endorse 
it, — it is suicidal. While I do not live in a farming 
country, and stand somewhat as a representative of 
the mining interests of the territory, it is my duty to 
speak out, and keep those people who have spent hun- 



ARTICLE L, SECTION 14 305 

dreds of thousands of dollars from being subject, as the 
honorable gentleman has said here, to blackmailers, 
from being compelled to go and stop their work, from 
being run over by a new proprietor. They will hem 
around the available land, fence in our country by a 
lot of pretended mining locations, they will run works 
through our works, they will confiscate our water rights, 
and so impede and embarass work and development there. 
Those people will have nothing to do with a constitu- 
tion that contains that provision or that language. You 
go before the people of a mining country and tell them 
that that is the case, and they will never adopt it. At 
the same time they will meet the agricultural men of 
this country on the water ditch question squarely and 
fairly, and give them every right and every privilege 
and protection. The Committee on Irrigation can pro- 
tect that. The waters that are flowing in the streams 
throughout this territory should be and will be pro- 
tected, — they must and ought to be. But if we have 
laws which can protect them now, without a constitu- 
tion, what is the use of enlarging upon it to our detri- 
ment? I will never for one instant support a doctrine 
that will allow any man to take my property for his 
own private use, — I do not care what that property is, 
nor what it is for; I would not tolerate it in anybody; 
I would not ask the privilege of taking any man's 
property, if it was not worth a dollar; I would not 
have a right to enforce a sale upon his part, even for a 
million; it is not right. It is a doctrine, as the gentle- 
man has said, that is new, — I should say it was! Why, 
it was for years and years that the question of eminent 
domain for public use was fought, and even went to 
the Supreme Court of the United States, where Judge 
Marshall limited its provisions at that time — the first 
decision in the United States upon the right, even the 
question of eminent domain. Since then, state constitu- 
tions have gone into the business of supporting railroad 
corporations and public corporations, until the poor men 
of the country are now subject to have their lands con- 



306 ARTICLE L, SECTION 14 

fiscated, even for public use, to a great extent endan- 
gering their property. The excuse that it is for public 
use has gone far enough — it is time to call a halt. 
When you can say that landed proprietors adjoining 
you, or mining proprietors adjoining you, can go and 
take your mine, tear up your works, confiscate your other 
developments of whatever nature, though your property 
might be worth about a dollar and a half and mine worth 
thousands of dollars, and you could never get compensa- 
tion on the cash value; but let him through your tunnel, 
because he has a right to take it for the development of 
his own mine, through your own mine, and let 
him run it throughout ail your works. This provision 
says "mining and milling purposes." If a man wants 
to erect a mill, let him go and put up one where it does 
not interfere with his neighbor. I protest against the 
right of any man to go out in my front yard, upon my 
stream, or upon my mine. If he wants property, let 
him acquire it, not force me to sell mine, not confiscate 
my works, not disarrange my plans for the development 
of my mine. But this provision says he shall have that 
right — any individual whatever can go and conduct 
his water through my yard, and he — I see that gavel, 
I will quit. 

The CHAIR. Yes, you have exhausted your time. 

Mr. CLAGGETT. Mr. Chairman, really the ques- 
tion that is covered by the substitute of the gentleman 
from Oneida does not come up here now. So far as that 
question is concerned, there is no possible objection to 
granting the motion and voting to strike this out, be- 
cause I am in favor of striking it out myself if it is to 
be deemed the taking of private property for private 
use, but I say that the public necessity must make the 
public use. 

The CHAIR. I think you are right. (Cries of 
"Question!"). 

SECRETARY reads Hagan's amendment: Strike 
out all that part of Sec. 14 which reads as follows: 
"Private property shall not be taken for private use 



ARTICLE L, SECTION 14 307 

unless by consent of the owner, except for private ways 
of necessity and for reservoirs, drains, flumes or 
ditches, on or across the lands of others for agricul- 
tural, mining, milling, domestic or sanitary purposes." 
Also strike out the words "or private" in line 5 of 
Sec. 14. 

Mr. MORGAN. I want to ask my friend a question: 
Is it intended to strike out all that part which permits 
the taking of private property for private use? 

Mr. HAGAN. Yes. 

Cries of "Question." Rising vote is taken. 

The CHAIR. I think the ayes seem to have it. 

Division called for. Vote taken; 32 ayes, 7 nays. 

The CHAIR. The motion prevails. Now read the 
section, Mr. Clerk, as it will read after that is stricken 
out. 

Mr. REID. I rise to a point of order. The gen- 
tleman from Idaho county offered a substitute before 
Mr. Standrod's, for the whole section. 

The CHAIR. I understand that, but I desire to 
have the section read, if you desire it. 

Mr. REID. I suggested it in order to have it read. 
Mr. Parker sent up a substitute for the motion. 

The CHAIR. (Reading) : "Private property shall 
not be taken or damaged for public or private use, un- 
less by consent of the owner." Do you consider that 
as a substitute? 

Mr. REID. The gentleman offered a substitute and 
made a speech on it. 

The CHAIR. I did not hear the speech. 

Mr. STANDROD. Mr. Chairman, I believe my 
substitute was first offered. 

The SECRETARY. Mr. Chairman, they were re- 
ceived at the desk in this order: Hagan's first, Stand- 
rod's second, and then this third one; I don't know 
where that came from. 

Mr. MORGAN. I would suggest that the substitute 
offered by the gentleman from Idaho is in almost the 
exact language of the other. The only discrepancy is 



308 ARTICLE I., SECTION 14 

one word in the first two lines of the section as it now 
stands, as amended. I see no reason why it should be! 
offered. "Private property shall not be taken or dam- 
aged for public use without just compensation. That 
is the exact language offered in his substitute, with 
the exception of "owner" in the place of "compensation." 

The CHAIR. Well, we will take a vote on it. The' 
question is now upon the adoption of the amendment of- 
fered by the gentleman from Idaho county (Mr. Par- 
ker). 

Mr. CAVANAH. I would like to hear that amend- 
ment read. 

SECRETARY reads Section 14: Private property 
shall not be taken or damaged for public or private use 
unless by consent of the owner. 

Cries of "Question. " Vote is taken. 

The CHAIR. The motion is lost. The question is 
now upon the substitute offered by the gentleman from 
Oneida. 

Mr. REID. Let us hear it read. 

The SECRETARY again reads Mr. Standrod's sub- 
stitute. 

Mr. ALLEN. Now I would like to have the sec- 
tion as amended read in connection with that. 

The CHAIR. This is a substitute for the whole of 
Section 14. 

Mr. ALLEN. The section has been amended, and 
I would like to hear that read as amended. 

SECRETARY reads: Private property shall not be 
taken or damaged for public use without just compen- 
sation. Such compensation shall be ascertained in such 
manner as may be prescribed by law, and until the 
same shall be paid to the owner, or into the court for 
the owner, the property shall not be needlessly dis- 
turbed nor the proprietary rights of the owner divested. 

The CHAIR. That is the section as amended by the 
motion of Mr. Hagan. Now Mr. Standrod offers a sub- 
stitute for the entire section. 

Mr. MORGAN. I move its adoption. (Seconded). 



ARTICLE I., SECTION 14 309 

Mr. BEATTY. I am heartily in accord with the 
gentlemen here who have advocated the development of 
this territory, and to that end that private property 
shall be taken when absolutely necessary. The question 
with me, in regard to this substitute as read, is whether 
it meets that end or not. It is impossible to keep the 
provisions of the section in your mind from hearing it 
simply read there without examining it closely, but as 
I remember it, it first provides that private property 
shall not be taken for any except a public use, and 
then it goes on and says that certain uses shall be 
deemed public. Now the question with me is this: If 
you undertake to determine by a provision of the con- 
stitution that a certain act, which is taking private 
property for private use, is a public use, does it make 
it so? Can you by saying that this property which is 
actually taken — private property taken for private use 
— by declaring that it is a public use, change the facts? 
It seems to me that the members who are in favor of 
this proposition, in advocating that, do not reach what 
they desire. Now I am heartily in sympathy with the 
movement to make such a constitution here that our 
mining interests can be developed, so that one man can- 
not hold a dozen back from developing property by 
reason of the situation of it, or that a man owning a 
farm or ranch, so situated that another farm or 
ranch can command it, shall be prevented from irrigat- 
ing his farm. I want the constitution made as liberal 
as possible, so that all the resources of the country 
may be developed. But as I understand the reading of 
this substitute, it seems to me it will fail to reach the 
very object that it seeks. Can you by any declaration 
make a thing different from what it is? You take a 
part of my farm to run your water ditch over; that is 
certainly taking private property for a private use. 
Now can any declarations of the legislature, or of the 
constitution even, or any legislative act, make that act 
what it is not? I cannot conceive that it does, and it 
seems to me that if we adopt this, you will not have 



310 ARTICLE I., SECTION 14 

accomplished the very object you desire. If I can be 
convinced that the declaration placed in there will make 
a private act a public act which will reach the object 
which you desire and which I desire, then I am ready 
to support the substitute, for I am in sympathy with 
the movement that will result in the development of all 
portions of the territory; but, as I heard that substitute 
read, I don't think it meets the purpose. 

Mr. SWEET. I understood Mr. Claggett to say that 
he was a member of the committee on Irrigation, and 
that this committee had made some arrangements with 
reference to the irrigating of these public lands. Now I 
think it is patent to everybody in the house that it will 
be utterly impossible to ever pass through this conven- 
tion the doctrine included in this Bill of Rights of ap- 
propriation of private property to domestic use. I do 
not believe that will ever be consented to by this con- 
vention. On the other hand, every member of the con- 
tention recognizes that we must take some steps by 
which these public lands in the state of Idaho can be 
irrigated, but this clause is altogether too sweeping, 
and in my judgment the substitute is too. I would sug- 
gest that these members of the Irrigation committee, 
who have, as I understand, some arrangement by which 
the lands can be irrigated and not interfere with the in- 
dustries and the right of property in the state, take the 
matter up with the object of suggesting a proposition 
that can reconcile these matters and save all this time. 

Mr. CLAGGETT. The committee on Irrigation, 
Manufactures and Agriculture have simply passed upon 
the question with regard to the irrigation question and 
the use of waters. There is something else that is re- 
quired in this state besides irrigation. We have an im- 
mense mining interest here that has got to be protected, 
and we need the incorporation of some such provision 
as this in the constitution for the protection of mining 
interests, in order that they may have mining easements 
upon their placer ground and condemn them when 
necessary. This thing concerns all parts of the terri- 



ARTICLE I., SECTION 14 311 

tory, and not one particular line. We have the right to 
do that now. Congress in 1866, in the legislation called 
the mineral land laws, declared that the legislatures 
of the several territories should have the power to pro- 
vide by law for the establishment of easements for 
drainage and other purposes upon the public lands, and 
also upon private lands, without compensation. 1 We 
have that power now, and have exercised that power 
under the authority given us by Congress; but if we 
come in here as a state we lose all of that, so far as the 
legislation of Congress is concerned, and have got to 
provide for this thing ourselves. I think so far as the 
substitute is concerned, that that substitute can be 
amended in such a way as to provide for easements 
upon lands for those purposes, and leave the lands alone 
and let the title rest in them. An easement that will 
carry water over a party's land, an easement to build 
a ditch across a man's claim, an easement to go over a 
man's claim when necessary — all of which would be 
provided by the legislature, under the safeguards there 
put in — and temporary possession for the purpose of 
sinking a shaft or running a tunnel — these things are 
absolutely necessary to be done, and I think the lan- 
guage of the substitute should be modified so as to 
cover any matters of this kind, to cover these matters 
of easement. I therefore move that the committee rise 
and ask leave to sit again, and that in the meantime this 
substitute be printed, so that we may have the matter 
properly before us tomorrow morning. 

Mr. MORGAN. I suppose the gentleman makes 
the motion now and includes in the order for printing 
the amendment offered by Mr. Heyburn. 

Mr. CLAGGETT. I make the motion now, that 
the committee rise, report progress, and ask leave to 
sit again, and recommend that the two pending amend- 
ments, the substitute of the gentleman from Oneida and 
of the gentleman from Shoshone, be printed, and laid 



1 — - Sec. 5, 14 U. S. Stat, at Large, p. 252. 



312 ARTICLE L, SECTION 14 

upon the desks of members tomorrow morning. It is 
too important a matter to go over hastily. 

Mr. HASBROUCK. I find among the committees 
that there is a committee on Mines and Mining, and 
that the duties of that committee are to consider and 
report upon all subjects pertaining to the interests of 
the mines and the question of the use of water in con- 
nection therewith. Perhaps if we had the report of 
that committee it might throw some light upon that 
subject. The objection is being raised that the commit- 
tee on Manufactures, Agriculture and Irrigation do not 
cover this case. I would like to inquire whether this 
committee on Mines and Mining covers the case — if 
their report will aid us. 

Mr. HEYBURN. Mr. Chairman, that suggestion 
came in another form from Mr. Sweet of Latah. The 
provision we are dealing with now is defining the right 
of eminent domain; it belongs right here, and does not 
belong to any of these committees. It is something to 
be declared in the Bill of Rights — the scope, right and 
power of eminent domain. This is the proper place to 
dispose of that question, and not in those committees. 
After that right is established here, in the Bill of 
Rights, the committees must conform themselves to it. 
It does not belong to the committee on Mining or the 
committee on Irrigation and Agriculture, but it belongs 
here. 

Mr. SWEET. Was your motion to adjourn sec- 
onded? 

Mr. CLAGGETT. Yes, it was. 

Mr. SWEET. Then I move to amend the motion to 
this effect: That the question of irrigation and the 
use of water for mining be referred to a general session 
of the committee on Mining and Irrigation, to see if 
we can harmonize those two things. 

Mr. GRAY. I call for the motion for the committee 
to rise. 

Mr. SWEET. I ask Mr. Claggett— ask that in his 
motion that the committee rise, he include it in his. 



ARTICLE I., SECTION 14 313 

Mr. CLAGGETT. Well, I had got pretty near 
through with the discussion of the merits; that would 
be almost unavoidable postponed, to get these two com- 
mittees together. I presume they can get together 
now. If they can, and be ready to present something 
tomorrow, and in the meantime let us have the substi- 
tutes printed and have them before us. 

Mr. SWEET. I have no objection to that. 

Mr. MORGAN. I call for the question, Mr. Chair- 
man. 

Mr. CLAGGETT. I think if the chairmen of the 
committees on Irrigation and Mining get together 

The CHAIR. The question as amended is that the 
committee rise and report progress, and that the substi- 
tute, together with Mr. Heyburn's amendment, be 
printed. (Vote). The motion is carried. 

CONVENTION IN SESSION. 

Mr. CLAGGETT in the chair. 

Mr. MAYHEW. Mr. President, the committee of 
the Whole have had under consideration the report of 
the committee on Preamble and Bill of Rights, and 
make the following report. (Handing it to the presi- 
dent) . 

SECRETARY reads : Your committee of the Whole 
have had under consideration the report of the com- 
mittee on Preamble and Bill of Rights, have amended 
Sections 7, 9 and 13, have adopted Sections 10, 11, 12, 
and have adopted a substitute for Section 8, and ask 
leave to sit again, and recommend that the substitute 
offered by Mr. Standrod, with the pending amendments, 
be printed. A. E. Mayhew, chairman of the committee 
of the Whole. 

Mr. REID. Does that cut off future debate, under 
the rule? 

The CHAIR. Oh, no; I think not; it stands just 
where it was before. 

Mr. REID. Under the rule all these amendments 
go over, and the ayes and nays may be called on each 



314 LEAVES OF ABSENCE 

proposition in the convention. What I want to under- 
stand is, that any proposition debated under this bill 
may be called up in convention and a vote had on de- 
mand. 

Mr. MORGAN. It has to be had in the convention 
— it must be had. 

Mr. EEID. My understanding was that when a 
question was referred to the committee of the Whole, 
they reported no conclusion until the whole matter was 
gone through with; that has been the custom, as I un- 
derstand. The Bill of Eights was referred to the 
committee of the Whole; they come to no conclusion 
until they finally dispose of it. 

The CHAIR. They came to no conclusion upon 
anything. 

Mr. RE ID. We are debating now what has been 
done in the convention. If this disposes of that matter 
finally, then I want to call for an aye and nay vote on 
some of these questions. 

Mr. MAYHEW. This report, as I understand, 
merely lays upon the table until the conclusion of the 
consideration of the Bill of Rights. 

Mr. REID. With that understanding I have no 
objections to interpose. 

The CHAIR. That leaves nothing before the con- 
vention, and the report lies upon the table. 

LEAVES OP ABSENCE. 

Mr. HAMMELL. I ask unanimous consent for 
leave of absence after Saturday night, as I have a tele- 
gram requiring my presence in north Idaho Monday, 
and unless the matter is attended to a large number of 
men will be delayed in their work; it is imperative. 

The CHAIR. If there is no objection the leave will 
be granted. 

Mr. SHOUP. My colleague, Mr. Crook, was called 
away yesterday, and informed me, to ask that leave 
of absence be granted him until Monday next. 



JOINT MEETING OF COMMITTEES 315 

The CHAIR. If there is no objection it will be 
granted. 

Mr. LEWIS. Mr. W. H. Savidge was unexpectedly 
called away this evening upon a telegram, and requested 
me to ask for leave of absence until Monday morning 
for him. 

The CHAIR. There being no objection, it is so 
ordered. 

JOINT MEETING OF COMMITTEES. 

The CHAIR. I would like to ask, in connection 
with this matter that came up, as to whether the chair- 
men of the committees on Irrigation and Mines and 
Mining can get their committees in joint session about 
8:00 o'clock tonight. 

Mr. CRUTCHER. So far as the committee on 
Mines and Mining, I will try to have what members 
are here present at that time. 

Mr. CAVANAH. The committee on Agriculture 
and Irrigation will meet if I can get them together, at 
the same time with the committee on Mines, at 8.00 
o'clock this evening, in the library rooms. 

The CHAIR. It is moved and seconded that the 
convention now adjourn until ten o'clock tomorrow 
morning. ( Carried ) . 



THIRTEENTH DAY. 

Friday, July 19, 1889. 

CONVENTION called to order by the President at 
10:00 A. M. 

Prayer by Chaplain. 

ROLL CALL. Present: Messrs. Ainslie, Allen, 
Anderson, Andrews, Armstrong, Ballentine, Batten, 
Beatty, Bevan, Brigham, Campbell, Cavanah, Chaney, 
Clark, Coston, Crutcher, Gray, Hagan, Hammell, Hamp- 
ton, Hasbrouck, Hays, Heyburn, Hogan, Howe, Jewell, 
King, Kinport, Lamoreaux, Lemp, Lewis, Maxey, May- 



316 COMMITTEE REPORT— SALARIES 

hew, McConnell, Melder, Myer, Morgan, Moss, Pefley, 
Pierce, Pinkham, Poe, Pritchard, Pyeatt, Reid, Salis- 
bury, Sinnott, Shoup, Standrod, Steunenberg, Taylor, 
Underwood, Whitton, Wilson, Woods, Mr. President. 

Absent: Messrs. Blake, Harkness, Harris, Sweet, 
Robbins, Hendryx, Parker. 

Excused: Messrs. Beane, Crook, Glidden, McMahon, 
Stull, Savidge, Vineyard. 

JOURNAL read. 

The CHAIR. Are there any corrections of the 
Journal ? 

Mr. LEMP. Mr. President, the committee on 
Finance, I believe Mr. McConnell is chairman of it, and 
I see in the minutes that Mr. Harkness is first, but I 
believe Mr. McConnell was appointed first. 

The CHAIR. The secretary will correct the record. 

Mr. BATTEN. I desire to call attention to a mo- 
tion in the Journal. It does not appear that the resolu- 
tion of Mr. McConnell touching the question of privi- 
lege raised by the gentleman of Boise was adopted, 
whereas in fact it was adopted. 

The CHAIR. The secretary will correct the Jour- 
nal accordingly. If there are no further corrections, 
the Journal of yesterday will be deemed correct. 

Presentations of Petitions and Memorials? None. 
Reports of Standing Committees? 

Mr. POE. The committee on Salaries of Public 
Officials will report. 

COMMITTEE REPORT — SALARIES. 

SECRETARY reads: Boise City, Idaho, July 19, 
1889. Mr. President and Members of the Constitutional 
Convention of Idaho Territory: Your committee on 
Salaries of Public Officers respectfully submit the fol- 
lowing report. J. W. Poe, Chairman. 

The CHAIR. The reports will lie upon the table 
to be printed. Reports from special committees? None. 
Final readings? None. Gentlemen, we have finished 
the regular order of business for the day. 



ARTICLE I., SECTION 14 317 

Mr. WILSON. I move that this convention resolve 
itself into a committee of the Whole for the purpose 
of considering the general orders of the day. (Sec- 
onded and carried). 

The CHAIR. Will the gentleman from Custer take 
the chair? 

Mr. SHOUP. I beg to be excused. 

The CHAIR. Will the gentleman from Shoshone 
take the chair? 

COMMITTEE OF THE WHOLE. 

10:80 A. M. 
Mr. MAYHEW in the Chair. 

Article I., Section 14. 

The CHAIR. Gentlemen, when the committee rose 
yesterday evening, we had under consideration Sec. 
14 of the Bill of Rights. 

Mr. STANDROD. I desire to ask leave to with- 
draw the substitute which was offered by me yester- 
day. I will state that it was recommended on yesterday 
afternoon that the two committees on Irrigation and 
Mining meet in joint committee, and prepare, if pos- 
sible, some section as a substitute for Sec. 14 of this 
Bill of Rights. Those committees have met in joint 
committee, and have a substitute this morning to offer 
instead of the one offered by me on yesterday; and for 
that reason I desire to withdraw the substitute offered. 

The CHAIR. If there is no objection the substi- 
tute may be withdrawn. 

Mr. MORGAN. I would like to hear the substitute 
before the pending substitute is withdrawn. 

Mr. STANDROD. I will present it. 

SECRETARY reads: "Section 14. The use of 
lands necesary for the construction of reservoirs, or 
storage basins for the purpose of irrigation, or for 
rights of way across such lands for the construction of 
canals, ditches, flumes or pipes to convey water to the 
place of use, for any useful or beneficial purpose or for 



318 ARTICLE I., SECTION 14 

drainage, or for the drainage of mines, or the working 
thereof, by means of roads, railroads, tramways, cuts, 
tunnels, shafts, hoisting works, dumps or other neces- 
sary means to their complete development, or any other 
use necessary to the complete development of the mater- 
ial resources of the state, or the preservation of the 
health of its inhabitants, is hereby declared to be a 
public use. 

"Private property may be taken for a public use, 
but not until a just compensation, to be ascertained in 
the manner prescribed by law, shall be paid therefor." 

The CHAIR. If there is no objection, the substi- 
tute just read is substituted for the one withdrawn. 
There was another amendment, you will recollect, also 
sent up by Mr. Heyburn. 

Mr. HEYBURN. Mr. Chairman, the amendment 
sent up yesterday by myself applies to the portion of 
the section that is not included in that substitute; as I 
understand it, that substitute is for the first portion of 
the section. 

Mr. CLAGGETT. The substitute is for the entire 
section. 

The CHAIR. Is the substitute now offered a sub- 
stitute for the entire section? 

Mr. STANDROD. Yes, sir. 

The CHAIR. If there is no objection, the substi- 
tute offered by the gentleman yesterday, Mr. Standrod, 
will be withdrawn. What is the pleasure of the com- 
mittee? It is now necessary to move the adoption of 
this substitute as the other is withdrawn. 

A MEMBER. I move the adoption of the substitute 
just as read. (Seconded). 

The CHAIR. It is moved and seconded that the 

Mr. STANDROD. Mr. Chairman 

Mr. REID. I would like to have the substitute 
read once more. 

SECRETARY reads. 

Mr. STANDROD. Mr. Chairman, the objections 
that have been made against this section in this article 



ARTICLE I., SECTION 14 319 

of the Bill of Rights, as well as many other sections, 
seem to arise from the gentlemen who claim that these 
sections are in conflict with the Fifth and Sixth Amend- 
ments to the Constitution of the United States. And 
even the lawyers in this convention seem to differ — they 
are at variance upon this question- — and for the benefit 
of the convention and members here who are not law- 
yers, and in order to refute the charges made against 
the committee on yesterday, intimating it was bringing 
in something that was unheard of and unconstitutional, 
I have taken some pains to examine authorities upon 
this question and I desire to read from decisions of the 
Supreme Court of the United States. I am aware that 
my time is short in reference to this, and I will have 
to read only certain clauses of these decisions. I read 
from the case of Twitchell v. The Commonwealth of 
Pennsylvania, decided in 7th Wallace, 321. It was a 
motion for a writ of error, and the court says this: 

"It is claimed that the writ should be allowed upon the 
ground that the indictment, upon which the judgment of the 
State court was rendered, was framed under a statute of Penn- 
sylvania in disregard of the 5th and 6th Amendments of the 
Constitution of the United States, and that this statute is 
especially repugnant to that provision of the 6th Amendment 
which declares 'that in all criminal prosecutions the accused shall 
enjoy the right' 'to be informed of the nature and cause of the 
accusation against him.' 

The statute complained of was passed March 30, 1860, and 
provides that 'in any indictment for murder or manslaughter 
it shall not be necessary to set forth the manner in which, or 
the means by which the death of the deceased was caused; but it 
shall be sufficient in every indictment for murder, to charge that 
the defendant did feloniously, wilfully, and of malice afore- 
thought, kill and murder the deceased; and it shall be sufficient, 
in any indictment for manslaughter, to charge that the defen- 
dant did feloniously kill the deceased.' 

"We are by no means prepared to say, that if it were an 
open question whether the 5th and 6th Amendments of the Con- 
tion ar>ply to the state governments, it would not be our 
duty to allow the writ applied for and hear argument on the 
question of repugnancy. We think, indeed, that it would. But 
the scope and application of these amendments are no longer 
subjects of discussion here, 



320 ARTICLE I., SECTION 14 

"In the case of Barron v. The City of Baltimore, (7 Peters, 
243) the whole question was fully considered upon a writ of 
error to the Court of Appeals of the State of Maryland. The 
error alleged was, that the state court sustained the action of 
the defendant under an act of the state legislature, whereby 
the property of the plaintiff was taken for public use in viol- 
ation of the 5th Amendment. The court held that its appellate 
jurisdiction did not extend to the case presented by the writ of 
error; and Chief Justice Marshall, declaring the unanimous 
judgment of the court, said: 

'The question presented is, we think, of great importance, 

but not of much difficulty The Constitution was ordained 

and established by the people of the United States for them- 
selves, for their own government, and not for the government 
of the individual states. Each state established a constitution 
for itself, and in that constitution provided such limitations and 
restrictions on the powers of its particular government as its 
judgment dictated. The people of the United States framed 
such a government for the United States as they supposed best 
adapted to their situation and best calculated to promote their 
interests. The powers they conferred on the government were 
to be exercised by itself; and the limitations on power, if ex- 
pressed in general terms, are naturally, and we think neces- 
sarily applicable to the government created by the instrument. 
They are limitations of power granted in the instrument itself, 
not of distinct governments framed by different persons and for 
different purposes." 

"And, in conclusion, after a thorough examination of the 
several amendments which had then (1833) been adopted, he 
observes : 

'These amendments contain no expression indicating an in- 
tention to apply them to state governments. This court cannot 
so apply them.' 

"And this judgment has since been frequently reiterated, 
and always without dissent. 

"That they 'were not designed as limits upon the state 
governments in reference to their own citizens/ but 'exclusively 
as restrictions upon Federal power/ was declared in Fox v. 
Ohio, to be 'the only rational and intelligible interpretation which 
these amendments can have/ And language equally decisive, if 
less emphatic, may be found in Smith v. The State of Maryland, 
and Withers v. Buckley and others. 

"In the views thus stated and supported we entirely concur. 
They apply to the sixth as fully as to any other of the amend- 
ments." 

I also read from Book 15, page 269, (Smith v. Mary- 



ARTICLE I., SECTION 14 321 

land). This case arose upon the power of the state of 
Maryland to enact laws relating to oyster taking on the 
coast there. It was claimed it was unconstitutional be- 
cause Congress had the right to enact laws relating to 
commerce, and it was further upon the question as to 
whether the warrant issued out of the state court was 
defective : 

"So far as it rests on the constitution of the state, the ob- 
jection is not examinable here, under the 25th section of the 
Judiciary Act. If rested on that clause in the Constitution of 
the United States which prohibits the issuing of a warrant, but on 
probable cause supported by oath, the answer is, that this re- 
strains the issue of warrants only under the laws of the United 
States, and has no application to state process." 

Further on in the case of Withers v. Buckley, (the same 
book, page 816) the question arose in regard to an act passed 
by the legislature of Mississippi regulating and defining the 
powers of the commissioners of Homochitto River. They say 
this in conclusion: 

"The Act of the Legislature of Mississippi* therefore, is 
strictly within the legitimate and even essential powers of the 
state, is in violation of neither the Constitution nor laws of the 
United States, and presents no conjecture or aspect by which 
this court would be warranted to supervise or control the decree 
of the High Court of Errors and Appeals of Mississippi." 

In the case of Fox v. The State of Ohio a woman was in- 
dicted there under the state criminal law for issuing counterfeit 
money and was tried and found guilty. (Book 12, page 222) : 

"It would follow from these views, that if within the power 
conferred by the clauses of the Constitution above quoted can be 
drawn the power to punish a private cheat effected by means of 
a base dollar, that power certainly cannot be deduced from either 
the common sense or the adjudicated meaning of the language 
used in the Constitution, or from any apparent or probable con- 
flict which might arise between the federal and state authori- 
ties, operating each upon these distinct characters of offense. If 
any such conflict can be apprehended, it must be from some re- 
mote, and obscure, and scarcely comprehensible possibility, which 
can never constitute an objection to a just and necessary state 

power It has been objected on behalf of the plaintiff in 

error, that if the states can inflict penalties for the offense of 
passing base coin, and the federal government should denounce 
a penalty against the same act, an individual under these sep- 
arate jurisdictions might be liable to be twice punished for the 
one and the same crime, and that this would be in violation of 



322 ARTICLE I., SECTION 14 

the fifth article of the amendments to the Constitution, declaring 
that no person shall be subject for the same offense to be twice 
put in jeopardy life or limb. Conceding for the present that 
Congress should undertake, and could rightfully undertake, to 
punish a cheat perpetrated between citizens of a state because 
an instrument in effecting that cheat was a counterfeited coin 
of the United States, the force of the objection sought to be 
deduced from the position assumed is not perceived; for the 
position is itself without real foundation. The prohibition al- 
luded to as contained in the amendments to the Constitution, as 
well as others with which it is associated in those articles, were 
not designed as limits upon the state governments in reference 
to their own citizens. They are exclusively restrictions upon 
federal power, intended to prevent interference with the rights 
of the states, and of their citizens. Such has been the inter- 
pretation given to those amendments by this court, in the case 
of Barron v. The Mayor and City Council of Baltimore (7 
Peters, 243) ; and such, indeed, is the only rational and intelli- 
gible interpretation which those amendments can bear, since it 
is neither probable nor credible that the states should have 
anxiously insisted to engraft upon the federal Constitution re- 
strictions upon their own authority — restrictions which some of 
the states regarded as the sine qua non of its adoption by them. 
It is almost certain, that, in the benignant spirit in which the 
institutions both of the state and federal systems are administered, 
an offender who should have suffered the penalties denounced by 
the one would not be subjected a second time to punishment by 
the other for acts essentially the same, unless, indeed, this 
might occur in instances of peculiar enormity, or where the 
public safety demanded extraordinary rigor. But were a con- 
trary course of policy and action either probable or usual, this 
would by no means justify the conclusion, that offenses falling 
within the competency of different authorities to restrain or 
punish them would not properly be subjected to the consequences 
which these authorities might ordain and affix to their perpe- 
tration. The particular offense described in the statute of Ohio, 
and charged in the indictment against the plaintiff in error, is 
deemed by this court to be clearly within the rightful power and 
jurisdiction of the state. So far, then, neither the statute in 
question, nor the conviction and sentence founded upon it, can 
be held as violating either the Constitution or any law of the 
United States made in pursuance thereof." 

I just have a short decision that I desire to refer 
to and then I am through — delivered by Mr. Justice 
Marshall, found in Book 8, page 674; it is the case re- 
ferred to in the first decision I read: (Barron v. Mayor), j 



ARTICLE I., SECTION 14 323 



"The plaintiff in error contends that it comes within that 
clause in the fifth amendment to the Constitution which inhibits 
the taking of private property for public use without just com- 
pensation. He insists that this amendment, being in favor of 
the liberty of the citizen, ought to be so construed as to restrain 
the legislative power of a state, as well as that of the United 
States. If this proposition be untrue, the court can take no 
jurisdiction of the .cause." 

The court goes on further and says: 

"Had the people of the several states, or any of them, re- 
quired changes in their constitutions; had they required addi- 
tional safeguards to liberty from the apprehended encroachments 
of their particular governments, their remedy was in their own 
hands, and would have been applied by themselves. A conven- 
tion would have been assembled by the discontented state, and 
the required improvements would have been made by itself. The 
unwieldy and cumbersome machinery of procuring a recommen- 
dation from two-thirds of Congress and the assent of three- 
fourths of their sister states, could never have occurred to any 
human being as a mode of doing that which might be effected 
by the state itself. Had the framers of these amendments in- 
tended them to be limitations on the powers of the state gov- 
ernments they would have imitated the framers of the 
original constitution and have expressed that intention. Had Con- 
gress engaged in the extraordinary occupation of improving the 
constitutions of the several states by affording the people addi- 
tional protection from the exercise of power by their own 
governments in matters which concerned themselves alone, they 
would have declared this purpose in plain and intelligible lan- 
guage. 

"But it is universally understood, it is a part of the history 
of the day, that the great revolution which established the Con- 
stitution of the United States was not effected without immense 
opposition. Serious fears were extensively entertained that 
those powers which the patriot statesmen who then watched over 
the interests of our country, deemed essential to union, and to 
the attainment of those invaluable objects for which union was 
sought, might be exercised in a manner dangerous to liberty. 
In almost every convention by which the Constitution was 
adopted, amendments to guard against the abuse of power were 
recommended. These amendments demanded security against 
the apprehended encroachments of the general government — 
not against those of the local governments. 

"In compliance with a sentiment thus generally expressed, 
to quiet fears thus extensively entertained, amendments were 
proposed by the required majority in Congress, and adapted by 



324 ARTICLE I., SECTION 14 

the states. These amendments contain no expression indicating 
an intention to apply them to the state governments. This court 
cannot so apply them. 

"We are of opinion that the provision in the fifth amendment 
to the Constitution, declaring that private property shall not be 
taken for public use without just compensation, is intended sole- 
ly as a limitation on the exercise of power by the government of 
the United States, and is not applicable to the legislation of 
the states." 

Is my time up? 

The CHAIR. No, you have two minutes. 

Mr. STANDROD. Now I desire to add that this 
question is absolutely settled. There certainly can 
arise no dispute over this question if gentlemen here 
will undertake to examine the authorities and the set- 
tled lay of the land. The section we now present be- 
fore this convention is a section, while it guards to a 
certain extent the taking of private property, declares 
in those instances that we all admit and agree are neces- 
sary — that in those instances and in those alone private 
property shall be taken for public use; and it defines 
what a public use is. It certainly will not be contended 
that this convention has not the power — that the state 
has not the power to prescribe or define what a public 
use is, and that it is not in conflct with the Constitution 
of the United States. We have made this definition in 
this section in order to settle this question and prevent 
wrangling over it in the courts, because when these 
questions come up the first opposition we meet with is 
that it is unconstitutional, it is not a public use, and the 
court must say what a public use is. Now in order to 
settle that question and prevent wrangling over it we 
define what it is, limiting it of course all the way along 
to those interests that we all see exist in this arid 
country. And there is nothing in it, it seems to me 
that is objectionable to any man here that is interested 
in the welfare and the development of this state. I 
submit, Mr. Chairman, that the objection that the gen- 
tleman raised yesterday that it was in conflict with the 
amendments or with the Constitution of the United 



ARTICLE I., SECTION 14 325 

States certainly should be settled by the decisions I have 
just read, and if these gentlemen will take the time 
to examine they will find they are squarely in point, or 
as the expression goes, are "on all fours/' and entirely 
put that question to rest. 

Mr. HEYBURN. Mr. Chairman, I desire to ask 
that I may take the bill for the purpose of considering 
the amendment proposed. I agree with the gentleman 
who has just addressed the convention that it is within 
the power of the convention to adopt such a provision as 
this, but we must be careful that we do not limit it to 
a particular class of uses to the exclusion of others. It 
struck me in the reading of it by the clerk — I may have 
been mistaken, not having the bill before me — that it 
discriminates to some extent in favor of agriculture in 
this first clause, and I have prepared an amendment 
which I will send up as soon as I am through with my 
remarks. (Reading from copy of Mr. Standrod's sub- 
stitute) : "The use of lands necessary for the con- 
struction of reservoirs or storage basins for the purpose 
of irrigation or for rights of way across such lands for 
the construction" — row I would suggest striking out the 
word "such" so that it will read: "The right of way 
across any lands for the construction of canals, ditches, 
flumes or pipes to convey water," because that would 
mean all such lands as are referred to in the first por- 
tion of this proposed amendment, and in mining opera- 
tions it is necessary also to construct ditches and flumes 
across lands for the purpose of conveying water, for 
the purpose of power and the business of mining in 
many ways, and it struck me that was limited to the 
use of agricultural lands to the exclusion of mining. I 
will proceed: "Across such lands for the construction 
of canals, ditches, flumes or pipes to convey water to 
the place of use;" that is, that would be across agri- 
cultural lands because they are referred to. "For any 
useful or beneficial purpose or for drainage, or for the 
drainage of mines or for the working thereof by means 
of roads, railroads, tramways, cuts, tunnels, shafts, 



326 ARTICLE L, SECTION 14 

hoisting works, dumps, or other necessary means to 
their complete development, or any other use necessary 
to the complete development of the material resources of 
the state." That would not seem to permit the con- 
struction of canals across mining lands or lands other 
than agricultural, because there is nothing in these sub- 
ordinate provisions that pertain to the construction of 
ditches. There is no mention among the mining uses. 
I will send up an amendment that I think will cover 
that; to amend by striking out the word "such" in the 
fourth line; then also in regard to this clause that "pri- 
vate property may be taken for a public use, but not 
until a just compensation to be ascertained in the man- 
ner prescribed by law shall be paid therefor." I think 
that should be amended by adding the words, "or de- 
posited in court under such conditions as the court may 
prescribe," because as it stands now, that in effect would 
take away the party's right of appeal, and I think this, 
with these amendments, will cover the interests of 
mining. 

The CHAIR. Is the amendment offered by the gen- 
tleman from Shoshone supported? 

Mr. CLAGGETT. Mr. Chairman, the substitute 
which has been offered by the committee on Bill of 
Rights — speaking for Mr. Standrod — has been very care- 
fully considered by three of the standing committees 
of this convention, constituting almost a majority of 
the convention. We got the members together, and those 
members have considered this matter. Not all of them 
on the committee on Bill of Rights, but all of them on 
the two committees on Mines and Mining and on Irri- 
gation. The language which is here reported has been 
very carefully considered; it covers in my judgment 
every conceivable interest which should be mentioned 
in the constitution, and I trust that in a matter of this 
kind we will not undertake to mutilate it by words which 
are not necessary, or through adopting the special ideas 
as to phraseology of any gentleman upon the floor. I 
read again : "The use of lands necessary." Those are 



ARTICLE I., SECTION 14 327 

the "such lands" as are referred to all through the sec- 
tion. "Such lands as are necessary" to be taken for 
these special purposes. "The use of lands necessary for 
the construction of reservoirs or storage basins for the 
purpose of irrigation;" that is, to cover the case of 
utilizing the large surplus flow of water in the spring, 
and where the state or large companies or corporations 
or individuals may desire to build reservoirs or storage 
basins above the place where water is to be used for irri- 
gating purposes. I read again: "The use of lands 
necessary for the construction of reservoirs, or storage 
basins for the purpose of irrigation or for rights of 
way across such lands;" that is, such lands as are neces- 
sary for this purpose. "For the construction of canals, 
ditches, flumes or pipes to convey water to the place of 
use for any useful or beneficial purpose or for drainage." 

Mr. REID. Will the gentleman allow me now to 
ask whether under that clause: "for any useful or 
beneficial purpose," you can do that for any other pur- 
pose except irrigating and mining? 

Mr. CLAGGETT. Certainly; it was intended to 
cover all cases which are now recognized by law. 

Mr. REID. Then as I understand the proposition, 
its effect is that private property can be taken for any 
purpose whatever, just so that it is considered useful or 
beneficial. 

Mr. CLAGGETT. No sir, if the gentleman will 
wait until I get through. "The construction of canals, 
ditches, flumes or pipes to convey water to the place of 
use for any useful or beneficial purpose, or for drain- 
age;" that is, a right of way across lands for the pur- 
pose of draining swamps or anything of that sort, "or 
for the drainage of mines or the working thereof, by 
means of roads, railroads, tramways, cuts, tunnels, 
shafts, hoisting works, dumps, or any other necessary 
means for their complete development, or any other 
use necessary to the complete development of the ma- 
terial resources of the state, or the preservation of the 
health of its inhabitants, it is hereby declared to be a 



328 ARTICLE I., SECTION 14 

public use. Private property may be taken for a public 
use, but not until a just compensation, to be ascertained 
in the manner prescribed by law, shall be paid therefor." 
Mr. Chairman and gentlemen of the convention, we 
have got rid, I hope, of the bugbear which embarrassed 
us yesterday in regard to the limitations upon our ac- 
tion here. The fact of the matter is that we old timers 
have lived so long in these territories that we have prac- 
tically forgotten the tremendous power of a state gov- 
ernment. We have been in leading strings so long that 
now when we represent the people of the state, subject 
to their ratification of this constitution which we are 
preparing, when the people of this state is a sovereign 
power, armed with all the powers which the state of 
New York or any other state has, we are met here on 
yesterday by these ideas which prevailed and which be- 
long to the territorial condition, and which have no 
reference whatever to our condition as a state. A state 
possesses the power of eminent domain; a state is a 
sovereign with the exception of such limitations as are 
contained in the Constitution of the United States and 
the national character of the few prohibitions which 
are specifically there laid upon state action. With these 
exceptions and limitations the state is a sovereign power, 
which is possessed of the same degree of power as the 
most despotic nation on this earth. It may take the 
private lands of individuals for public use without com- 
pensation; that is the original theory of the law of 
eminent domain. We are inquiring here, not whether 
we would not have the power to do it, but we are in- 
quiring here to what extent will we exercise this power, 
and what limitations will we put upon this action of the 
state. And the resolution which has been reported 
provides that the uses of lands for these necessary 
purposes are hereby declared to be public uses, and as 
such may be condemned in the manner provided by 
law. That is the substance of it. Are we going to 
create a state government here and act on the theory 
that we are nothing but a corporate body, deriving all 



ARTICLE I., SECTION 14 329 

the powers we have from a legislative act? I apprehend 
not. Will my friend from Nez Perce say, for instance, 
that where it is necessary to subject private lands to 
uses of this kind, necessary to subject them to the pur- 
pose of building reservoirs and irrigating large sections 
of country, or building storage basins, that it is not a 
public use in the very nature of things? Will my friend 
from Nez Perce go so far as to say that the use of fa- 
cilities for mining and the complete development of 
mining property is not a public use? Will he go so 
far as to say that the power to preserve the welfare of 
the inhabitants of the state by subjecting private prop- 
erty on the payment of compensation to public use, is 
not a public use, or any other use which is necessary 
for the complete development of the material resources 
of the state? I apprehend not. 

Now, Mr. Chairman, every one of these provisions is 
taken in substance or in spirit from three sources: One 
is the theory which was adopted by the constitution of 
the state of California, 1 and which was reported with 
reference to the use of water by the report of the en- 
tire committee. The other was taken with regard to 
mines from the act of Congress, providing that in the 
absence of legislation by Congress the local legislature 
may provide rules for the regulating of mines, involving 
easements and all other means necessary to their com- 
plete development. 2 The language was almost copied. 
And the third source of information drawn on here is 
from the oldest territorial statute passed some twenty- 
three years ago, and under which we have been operat- 
ing very beneficially, but our friends have never dis- 
covered the existence of this statute. 3 



1 — Sec. 1, Art. 14, Cal. Const. 1879. 

2 — Sec. 5, 14 U. S. Stat, at Large, p 252. 

3 — Possibly referring* to Sec. 2 of an act passed in 1864, re- 
garding location of quartz claims; 1st Terr. Sess. Laws, p. 
577. But see also the early Nevada statute, entitled; "Con- 
demnation of Property for Mining Purposes," enacted Mar. 
3, 1866; Sess. Laws 1866, p. 196; Comp. Laws of Nevada, 
1873, Sec. 120. Mr. Claggett was living in Nevada at the 
time that statute was passed. 



330 ARTICLE I., SECTION 14 

Now, I do not think that the amendment offered by 
Mr. Heyburn with regard to the court has anything to 
do with it. The committees who have considered this 
matter have suggested this substitute which has simply 
defined and declared — or rather has simply declared 
what shall be considered public uses, and then the 
machinery for the execution of any public use is left 
entirely to the legislature. Now let me illustrate; I 
may run over my time a minute. 

The CHAIR. No, sir, you have a few minutes left. 

Mr. REID. I ask unanimous consent that the gen- 
tleman may finish his argument. I think the matter 
should be discussed fully. 

Mr. CLAGGETT. Now, the great trouble 

Mr. MORGAN. One of the principal purposes of 
this section is to permit private property to be taken 
for individual use, and yet that is not expressed any- 
where in the section. Do you think it is sufficiently ex- 
pressed? 

Mr. CLAGGETT. It is not intended for any such 
purposes whatever. It is intended to be taken for pub- 
lic use, but the sovereign power of the state declares 
what shall be considered public uses, extending to every- 
thing which is necessary to the complete development of 
the material resources of the state or the preservation 
of the welfare of its inhabitants. Now let us see. We 
very frequently get into trouble by not carrying a propo- 
sition in our minds far enough. Let me inquire for a 
moment as to what this talk means about taking pri- 
vate property for public use. Let me ask my friend 
from Bingham whether he will not admit that if the 
legislature of the state should undertake to grant a 
right of way across private lands for the purpose of 
constructing a railroad, would not that be subjected to 
a public use? 

Mr. MORGAN. Yes. 

Mr. CLAGGETT. Why? Do you not take from the 
farmer over which that right of way is granted the use 
of these lands and give it to a private corporation? 



ARTICLE I., SECTION 14 331 

Mr. HAGAN. No. 

Mr. CLAGGETT. I beg your pardon, you do. You 
give the use to the private corporation, to the railroad 
company. Why do you do it, and yet you call it a public 
use? Why? Because it is necessary that it shall be 
subjected to the uses of a private corporation in order 
that the public may be benefited thereby. That is the 
point. 

Mr. RE ID. Will the gentleman allow me to ask 
him what becomes of the right of eminent domain? 

The CHAIR. The gentleman has been talking ten 
minutes. 

Mr. REID. I ask unanimous consent that he be al- 
lowed to proceed. 

Mr. CLAGGETT. My friend from Kootenai says 
no. I reiterate my statement that it does. The cor- 
porate authorities, in the case I have supposed, are 
treated as the agents of the state, in declaring a public 
use through the agents of the state, who proceed to ap- 
ply it to the greatest interest of the people under the 
laws provided for that purpose, not of declaring it a 
public use, but of condemning it for public purposes. 
That is the theory, but as a matter of fact the lands of 
the private citizen — the use of the lands, not the lands 
themselves, for the lands continue the property of the 
farmer in the case I have put; the use of the lands is 
taken away from the farmer so far as the use of them 
would interfere in any way with the use of the railroad 
corporation in them, and transferred to the corporation 
itself. Now I ask, does not that meet all this talk with 
regard to the question of taking private property for 
private use? In other words, there is only one way in 
which you can take private property for public use; I 
do not except that where the state itself has proceeded 
to build its own railroads, and then the state itself 
would own the right of way instead of the corporation 
owning it. Now if that is true with reference to rail- 
road corporations — I have taken this for the purpose 
of illustration because all concede that — what is the 



332 ARTICLE I., SECTION 14 

difference between that and the case which was put here 
with regard to these other matters ? Here is a farmer who 
has a piece of land; it is necessary that a reservoir 
should be built upon that land. Therefore a corporation, 
I will say a water company, a corporation is organized 
for the purpose of constructing a large reservoir or 
canal, and that corporation under the same power as is 
here given to a railroad company for a right of way, 
comes in and subjects the land of private persons to this 
easement or servitude called a use, and although taken 
for public purposes, for the public benefit, it is prac- 
tically turned over and transferred to the corporation, 
and I say the proposition cannot be successfully denied. 
Now what is the test as to what is a public use? I am 
not now speaking of that by legislative enactment, but 
the test in the very nature of the thing. Why is it a 
public use to take a man's land and give the use of it 
to a railroad corporation for transporting passengers? 
Is it because of the man's wealth? Not at all. Is it be- 
cause all men may ride on it as they choose? Not at all. 
It is because thereby the public interests will be provided 
for and the public benefit secured ; that is the legal prin- 
ciple that underlies the whole question of public use, and 
will anyone say that the subjection of apiece of land for 
the right of way of a railroad company for one public pur- 
pose, or for the purpose of public benefit, is of any higher 
degree of benefit than it would be to subject the land to 
the easements provided for here, for the purpose of irri- 
gating a large section of the state, and enabling hundreds 
of thousands and millions of people to live while there 
are now one to the square mile? It is absolutely neces- 
sary that these public interests should be guarded, pro- 
vided for, and the declaration made that they are for 
public uses. 

Mr. Chairman, in conclusion I simply want to say 
this, that nowhere here in this provision is there a taking 
of any private property for anybody's private benefit. It 
is simply the subjection of private property to public 
control, in the interest and for the purpose of promoting 



ARTICLE I., SECTION 14 333 

the development of the state and securing the welfare of 
its people; that is all. 

Mr. BEATTY. I would like to ask the gentleman a 
question before he takes his seat. I would like to ask 
if under the provisions of that amendment one farmer 
can run his irrigating ditch across another farmer's 
land? 

Mr. MORGAN. By making compensation he can. 

Mr. CLAGGETT. That depends entirely with re- 
gard to what the legislature may say. If it does not 
take action the power is not conferred; if the legislature 
leaves it out, he cannot. The machinery of the whole 
thing is left to the legislature. 

Mr. BEATTY. Then under the provision as there 
made, that power you do not concede is granted? 

Mr. CLAGGETT. I concede that the power of the 
state is granted to subject all the lands of the state that 
may be necessary to those uses, to the uses which are 
contemplated in this provision ; that is all. Not of itself, 
— it does not exercise itself, but I am not one of those 
who say that we should put in our constitution the broad 
declaration to the effect that private property can only 
be taken for public uses and and then stop there. Then 
in case the legislature proposes to subject it to any use 
which prior to the adoption of the constitution had not 
been considered a public use, you would have the ques- 
tion raised in the courts of the unconstitutionality of 
the statute, because it would be claimed that that was 
not a public use but a private one. That is the point, 
and if you do not put such a provision as this in the con- 
stitution, you will be hung up by the holidays, so far as 
the complete development of all the resources of this 
state is concerned. Under the old constitution of the 
state of California they had that provision, prohibiting 
the taking of private property for anything except pub- 
lic uses, and what was the result? We saw how the 
monopolies grew up, until in 1879, when the new con- 
stitution was adopted, which has been most ungraciously 
referred to by two distinguished gentlemen on this floor, 



334 ARTICLE I., SECTION 14 

for the purpose of creating prejudice against it, as the 
sand-lot constitution, the people then for the first time 
got an opportunity to pass upon this question, and the 
first thing they did was to provide — I will read from 
Section 1 here, Article 14. Now bear in mind the state 
had never done anything of this kind before. The use 
of water was never esteemed a public use in California 
but a matter to be subjected to private ownership and 
control alone, and nobody could interfere with it be- 
cause it had become a vested right; but the constitution 
went on and provided: (reading) "The use of all 
waters now appropriated, or that may be hereafter ap- 
propriated, for sale, rental or distribution, is hereby de- 
clared to be a public use, and subject to the regulation 
and control of the state." Why was not the question 
raised there then, if the sovereign power of California 
had not the power to pass any such provision? Never- 
theless they did it. They took the use of the waters in 
their state and declared that that use was a public one 
with them, that no man might use the water at all for 
any purpose except in the manner provided by the au- 
thority of the laws of the state. And yet when we come 
in here and present this substitute for all these abso- 
lutely necessary uses, and provide that only such lands 
as are necessary to carry out these uses shall be sub- 
jected to that use, we are met by such objections as are 
raised here. 

Mr. REID. Mr. President, I offer the following 
amendment ■ 

The CHAIR. As I understand, the amendment of- 
fered by the gentleman from Shoshone was seconded. 

Mr. HEYBURN. I understood it was seconded at 
the time. 

Mr. REID. Well, I will second it now, if no one 
else has. 

The CHAIR. Now what is the nature of this amend- 
ment of the gentleman from Nez Perce? 

SECRETARY reads: Strike out the words "for any 
useful or beneficial purpose or" 



ARTICLE I., SECTION 14 335 

Mr. MORGAN. Mr. Heyburn's amendment is in 
order. 

Mr. REID. Mine is an amendment to the original 
substitute. I take it that both amendments are before 
the committee for consideration. He has offered it to 
one part of the section and I offer it to another. 

The CHAIR. The amendments do not conflict at all, 
but they will be put in their order. 

Mr. REID. Well, his comes first. 

The CHAIR. Is the amendment proposed by Mr. 
Reid supported? 

Mr. MORGAN. I will second it. 

Mr. REID. I do not wish to take up the time of 
this convention by talking too much, but the constitution 
of the United States is my political Bible, and I do not 
proposed to be sneered at, as the distinguished gentle- 
man seemed disposed to do with those of us who have 
taken a position on the other side of these constitutional 
questions, and I do not suppose the charges against the 
profession I represent and to which I have the honor 
to belong, that may create prejudice among laymen here, 
will deter us from standing up here for constitutional 
principles. The gentleman says we have lived so long 
out here that we have forgotten the powers — that most 
of us have forgotten the powers of a state constitution. 
I take it from the radical changes he has made, that he 
has forgotten too some parts of the Constitution of the 
United States, which is above all these state constitu- 
tions, and I find other gentlemen here who have been 
just as long engaged in the same business — we may be 
tenderfeet so far as our legal knowledge of this prin- 
ciple is concerned — but I find here, standing with me, 
the conservative gentleman from Shoshone, his colleague, 
and the other conservative gentleman from Shoshone, 
his colleague, and I find yourself, Mr. Chairman, another 
of his colleagues, all three of you, who have been prac- 
ticing in the same courts as the honorable gentleman 
who has addressed this convention, had the same ex- 
perience that he has had, who are just as loyal and pa- 



336 ARTICLE I., SECTION 14 

triotic as he is — and I will grant no gentleman can be 
more so, I give him credit for his intentions — yet, at 
the same time, when I find myself with a majority of 
you gentlemen who have lived on this coast too long — 
lived so long that you have forgotten the powers of the 
state constitution and the Constitution of the United 
States, I think that I can dare raise my voice for these 
rights of the people that I see attempted to be stricken 
down here, without it being charged that I want to 
thrust my opinions on this convention, or being sneered 
at because perhaps we have not had the same experience 
as some other distinguished gentleman who has ad- 
dressed the convention. And furthermore we have been 
treated to decisions of the Supreme Court. It is true 
of these constitutional questions that they have been set 
at rest, and yet with one exception every decision read 
was taken from opinions rendered long heretofore, and 
before the constitutions of those states had incorporated 
in them these innovations that are being made now every 
year or two in some of them. Why not come down to a 
latter day, and present to this convention, as the gentle- 
man from Shoshone, Mr. Hagan, yesterday said, some 
decisions of recent date from this court, where they 
passed upon these very constitutional provisions the 
gentleman proposes to incorporate here? The first one 
he read, the one upon which he seemed to rely, was sim- 
ply upon the wording of a criminal indictment — whether 
or not it charged the crime with certainty, and then he 
referred to the remark that it was not in conflict with 
the Fifth and Sixth Amendments to the federal con- 
stitution. And the gentleman assumed here to place us 
in a hole, in that we did not want to develop the re- 
sources of Idaho. What gentleman here has raised his 
voice against this provision for developing the mining 
interests of this territory? What member has risen on 
this floor and uttered one word against irrigation? Not 
one. That is not what we are striving to do — and the 
gentleman makes an argument on that — nobody has 



ARTICLE L, SECTION 14 337 

opposed it, nobody has said that you cannot take water 
for the uses of irrigation or for mining purposes. But 
what have you got in that bill, in that portion of the 
section that I propose to strike out? That I may take 
private property "for any useful or beneficial purpose," 
for any purpose — for any useful or beneficial purpose! 
What does that mean? Why, it simply means that if 
you want to take your neighbor's property and run water 
across it for a tan-yard, for a mill — for any purpose 
conceived to be useful or beneficial, you can do it. I 
stand on this question like I did on the Mormon ques- 
tion; build your constitution so tight and so strong, and 
empower your legislature so fully to carry it out, that 
you can crush it. And that is the question with this 
section of the constitution we are considering ; that Idaho 
may be developed by irrigation, that our mines may be 
dug out, that our resources and our wealth may be 
developed; but when you have done that, stop, and don't 
say that "for any useful or beneficial purpose" any man 
or any set of men can walk into the cabin of the poorest 
man, or across his land, and take his property for any 
purpose of that sort he may see fit; that is what I am 
protesting against here; I insist upon my rights guaran- 
teed me by the Constitution of the United States. And, 
Mr. President, if I am to go into this Union without the 
barriers thrown around the protection of my rights and 
my liberties that the Constitution of the United States 
guarantees, then I don't want to go into a Union of that 
sort. I want its safeguards. I have seen the time when 
it protected us in difficulties as dangerous as history 
has ever recorded. Its great provisions, even in civil 
war, protected us with the writ of habeas corpus; we 
fought that war through, we saw our government nearly 
overthrown, we saw how much that represented — that 
old flag, those great principles that I am trying to stick 
to now, that gave us liberty and freedom. I have tested 
it and seen its benefits, and I propose to stand by it. I 
am willing to go as far as any gentleman, but when you 



338 ARTICLE I., SECTION 14 

say that private property may be taken "for any useful 
or beneficial purpose," and leave it to juries, or courts, 
or individuals to do it, then I say you are striking down 
one of the safeguards of the constitution, and I say that 
you are making innovation after innovation, that the 
gentleman cannot find in the constitution of California 
or any other state, and never will find it there, because 
it don't belong there. If you do cut off debate here, if 
you do pass these innovations, when you go to the peo- 
ple you will have a forum where we will be heard, and 
if you touch the question of these constitutional rights 
that are dear to them, they will rise up and vote your 
constitution down at the ballot box; they will never be 
denied by that tribunal; they will reject it if these pro- 
visions go in. 

Mr. HAGAN. One would think by the position taken 
by the gentleman who sustains in chief this proposed 
amendment, that if the convention endorsed that senti- 
ment contained there, we would drift from constitutional 
limits and away from constitutional barriers. I judge 
by the reasons that he gave, I judge that the experience 
he has had in the territories has so affected him that he 
can drift insensibly away from these barriers and still 
maintain that he is within the constitution. All these 
decisions read by my friend Standrod are well settled 
principles of law, against which no lawyer today has a 
word to say, but not one of them touches the point in 
issue, and not one of them yet has told us the real issue 
in this case. They give us a dose of medicine; they 
expect, because they gave it with some covering, that 
we can't taste it; at present we have not taken the medi- 
cine. Why, that is worse than the original resolution. 
It is the most remarkably composed set of gush that I 
ever heard presented to either a legislature or a con- 
stitutional convention. Dissect it word for word, and 
with all due deference to what the gentleman says, he 
has got no legal reason for its adoption. There is not a 
constitution in this Union that ever adopted it; why 
don't they show us one? Why don't they tell us that 



ARTICLE I., SECTION 14 339 

Colorado, when she sought to be admitted into the Union, 
had almost the same provision, but that they could not 
get it adopted, that Congress would not accept it, and the 
only state in this Union that had a provision that applied 
these principles or attempted to do it, is the state of 
Colorado, and she dared not yield her claim of sover- 
eignty by putting into her constitution what we attempt 
today in Idaho to do, because it was deemed anti-repub- 
lican, because, put this in your constitution and you will 
sound the death knell of every hope you have for admis- 
sion into this Union. Private property for private use 
is what that means, and what it tries to say, it does not 
mean. Whoever heard of a constitution giving the right 
to a coterminous, adjoining farmer or mine owner to 
not only go with an easement over the ground or through 
it, under it, over it, but put a reservoir on it and confiscate 
the very foundation of his neighbor's property? Mr. 
Claggett says we call it a public use. You might call it 
a public use when my neighbor for his own self-protec- 
tion does this, but not when for his own self-gratification 
he wishes to take my property. He says that is a public 
use; I say it is not. The Supreme Court of the United 
States, in a decision rendered there which has been fre- 
quently in the court cited, long ago held that the states 
may exercise acts of eminent domain; that is as far as 
any state has ever attempted to go. You may call it a 
public use for my neighbor to take my property because 
he wants it. What is to prevent me instead from taking 
his because I want it? Can you cover it up, make it any 
the less odious, because you call it a public use? Why 
the idea of the gentleman's proposition about railroads, 
about public corporations taking property! I fear he 
has not read the decisions if he seriously maintains 
that. If he had he would know that these corporations, 
unless they are public corporations known to the law, can 
never condemn for eminent domain. He should know 
that because a corporation is owned by private indi- 
viduals it is no less a public corporation and so de- 
clared by law, and unless they are public — for the 



340 ARTICLE I., SECTION 14 

benefit of the public — they cannot touch one foot of 
my property or force their way through my property 
in any manner. In speaking here today I am going to 
make the issue squarely and fairly; I am opposed to 
the section and every amendment that can be offered 
to it. I am opposed to taking gilded pills telling me that 
private property can be taken for private use, and that 
we will knock at the doors of this Union with such a 
clause in our constitution. I am opposed to it for the 
mining community. They are struck at especially in 
this, and they are the only class that the measure at- 
tempts to strike down. Anybody knows that proper 
resolutions can be passed for the protection of irriga- 
tion and water rights. I have one here on the table that 
I propose to offer at the proper time to protect all irri- 
gating and water privileges throughout this state, one 
that can be made; and the courts have decided — and 
the gentlemen have not even found a decision upon their 
own side — the courts have decided the right of the 
state to control the waters of the state for irrigating 
and for any purpose, and the flow of water. That can 
be protected. Why don't you attempt then to pass a law 
that will protect every right? No; you go to the miner 
in the mining district and pass a law to take his prop- 
erty for all flumes, tunnels, ditches, reservoirs, dams, 
so that you can confiscate his property for private use. 
You don't do it with the farmer; you let him go; and 
one of the most vital interests in this country attempted 
to be stricken down is the one which I stand here to 
protect today. The gentleman comes from a mining 
community. Can he go back to his constituency and 
tell them that because a private individual joins him he 
has got a right to go through his mine, tear up his 
tunnels and works, make reservoirs right through his 
shaft because the water flows there — do anything, in 
other words, to destroy a coterminous proprietor — 
that that is a public use? It would take a more silver- 
tongued orator than he is to make those miners up 
there accept it. Our mining men in this country will 



ARTICLE I., SECTION 14 341 

never tolerate a clause in that constitution of that sort, 
and when you pass a law under which you can take 
private property for private use you strike down the 
very business of that class of people in this country 
under this constitution. Now sir, I want to protect all 
the irrigating ventures and all the mining ventures, 
and it can be done on other lines. You have no right 
to take from a man his mining property except to the 
extent of an easement; that I am in favor of, all 
easements applicable to mining, agriculture, or any- 
thing else. I am in favor of that, but when you tell me 
that a private individual can take my property for his 
private use as he may see fit and say it is a public use, 
you deprive me of a constitutional privilege that is 
guaranteed by the constitution of the United States 
itself, and you seek to do that which no state in this 
Union has ever sought to do. Now why has Colorado 
had to come down and modify her constitution before 
she could be admitted? And it is the only state that 
contains it which I can find. On the question of irri- 
gation — I will not read it all; it is long, five or six 
sections; it protects everybody in the use of water and 
all easements for water. I read from section 7, article 
16: 

"All persons and corporations shall have the right 
of way across public, private and corporate lands for 
the construction of ditches, canals and flumes, for the 
purpose of conveying water for domestic purposes, for 
the irrigation of agricultural lands, and for mining and 
manufacturing purposes, and for drainage, upon pay- 
ment of just compensation." 

Now that ought to suit anybody. That gives them 
every right, and the preceding sections protect far 
more interests throughout the country than have been 
protected in this state. I am in favor of going even 
that far and indorse it. But I am not in favor of 
calling it a public use for a private individual to take 
my property and subject it to the uses he pleases and 



342 ARTICLE I., SECTION 14 

take it away from me. The Supreme Court of the 
United States has shown by decisions that we can do 
that. We are not restricted from that right. But to 
tell me now that we have got eminent domain engraft- 
ed in our law everywhere over the Union, that we shall 
now take a step farther and strike down every con- 
stitutional guarantee that protects a man in the owner- 
ship of his property and allow a private individual to 
take it — I do not believe there is a constitution or a 
country in the world where it is allowed. The gentle- 
man says the state can take private property with- 
out compensation; I say it cannot. The state owns 
certain property, it has certain privileges and rights, 
and the only reason that the state through her consti- 
tution can take any property at all, or allow others to 
take it, is by reason of the sovereignty that remains 
in her, notwithstanding the limitations of the constitu- 
tion of the United States. Those limitations have been 
thrown around the state and the people. She preserves 
to a certain extent sufficient sovereignty to exercise 
those rights of eminent domain, but no state has a 
right either by herself or otherwise to give an individual 
of that state the right to take my property for his own 
use. 

The CHAIR. The gentleman's time has expired but 
if there is no objection he can continue. 

Mr. HAGAN. All I have to *say in addition is 
this ■ 

Mr. CLAGGETT. I move that he be allowed to 
continue. (Seconded.) 

Mr. CAVANAH. I object. 

The CHAIR. It is moved and seconded that the 
gentleman be allowed to continue. 

Mr. HAGAN. No sir, there has been objection 
made. I suppose the gentleman takes the position that 
private property can be taken for private use. 

The CHAIR. The motion has been moved and 
seconded that the gentleman have more time. He can 
continue his remarks. 



ARTICLE I., SECTION 14 343 

Mr. HAGAN. I am through, Mr. President. 

Mr. MORGAN. The difference between the con- 
stitution of the United States and of the several states 
is this: The constitution of the United States is a 
granting of power to the federal government. The 
people give the federal government power to do certain 
things. It is also to some extent a limitation upon that 
power, and it is a grant by the sovereign people of all 
the states to the federal government to do certain 
things. On the contrary, the constitution of the state 
is a limitation of power; the power resides in the 
people. The legislature of the state can do anything, 
unless it is restrained by its constitution. We are 
seeking here to frame a constitution which shall re- 
strain and limit the powers of the legislature of this 
state and of the courts. That is the difference between 
the federal constitution and the constitution of the 
state. I agree with the gentleman from Shoshone when 
he states that all power resides in the people of the 
state; within the sovereignty of the state, the state can 
do anything; but we propose by this constitution to put 
limitation upon that power. Among other limitations 
is the one to prevent the taking of private property for 
public or private use except with just compensation. 
Now, the taking of this property for the purpose of 
irrigation — and I speak of this question because I am 
more familiar with it than I am with the other; and I 
will leave those gentlemen who come from the mining 
districts to take care of their own interests — the neces- 
sity for taking private property for public and private 
use is absolutely essential and this country cannot 
exist without it. In any part of the country where 
irrigation is necessary it is also absolutely necessary 
that both individuals and corporations shall be permit- 
ted to take private property for the purpose of con- 
structing reservoirs and ditches. It is an easement, 
and the only objection that I have to the section that 
was introduced this morning, is that I fear it does 
not go far enough. The question asked by Mr. Beatty 



344 ARTICLE I., SECTION 14 

of the gentleman from Shoshone was not answered. 
His question was: Can one farmer take the property of 
another? He can to secure a right of way across the 
farm of his neighbor for the purpose of irrigation. I 
did not understand the question to be answered. If 
this section does not permit that to be done it does not 
go far enough. It is an extraordinary power, I grant 
it, and we should be careful in granting extraordinary 
powers, but it is a necessity which exists in this coun- 
try and without which the country cannot exist. We 
must give this country up and let it go back to desert 
unless we can do this very thing. If we can't do it, 
then this country as a country cannot exist. Now a 
section has been laid upon our tables this morning 
which I think covers this thing completely, and if I 
understand the gentleman from Kootenai he is in favor 
of it. It is section 4 of the report of the committee 
on Manufactures, Agriculture and Irrigation. Section 
4 reads as follows: "All persons and corporations shall 
have the right of way across public, private and cor- 
porate lands for the construction of ditches, canals and 
flumes, for the purpose of conveying water for domes- 
tic purposes, for the irrigation of agricultural lands, 
and for mining and manufacturing purposes, and for 
drainage, upon payment of just compensation in the 
manner prescribed by law." 

Mr. HAGAN. Yes, but that has been withdrawn 
and this put in its place. That was a very well drawn 
article. 

Mr. MORGAN. It has not been under considera- 
tion. 

Mr. HAGAN. It was withdrawn. That was taken 
from the constitution of Colorado. 

Mr. MORGAN. Now, gentlemen, the constitution 
of Colorado has precisely this section in it. 

Mr. TAYLOR. I think the gentleman is mistaken 
about it being withdrawn. It has not been considered 
at all. 



ARTICLE I., SECTION 14 345 

Mr. MORGAN. What I mean is this substitute for 
it by the committee. 

Mr. HAGAN. Didn't the gentleman withdraw his 
substitute this morning? 

Mr. BEANE. It was reported by another com- 
mittee. 

Mr. HAGAN. That I understand to refer to Mr. 
Standrod's substitute. 

Mr. MORGAN. The section in the constitution 
which was reported here and which I understand the 
gentleman to refer to has not been withdrawn. 

The CHAIR. The one goes under the Bill of Rights, 
and this section is in the report of the Committee on 
Agriculture, Irrigation and Manufactures. 

Mr. MORGAN. Section 14 of Article 2 of the Colo- 
rado constitution is as follows: 

"Private property shall not be taken for private 
use unless by consent of the owner, except for private 
ways of necessity and except for' reservoirs, drains, 
f' umes or ditches on or across the lands of others, for 
agricultural, mining, milling, domestic or sanitary 
purposes." 

It will be seen that this section of the constitution 
in terms permits the taking of private property for 
private use, and that is just precisely what we are 
contending for for the purpose of irrigation. And the 
objection I have to the section which was offered this 
morning as a substitute was that it did not seem to 
cover this thing. If it is proposed to pass both sections 
I am in favor of it, but if it is proposed to pass the 
substitute introduced by Mr. Standrod this morning 
and reject this section of the constitution of Colorado, 
or that section reported perhaps by the committee on 
Irrigation, then I am opposed to it because it does not 
go far enough. I want this convention to put it in 
such terms that the courts and everybody else can 
understand it, that for the purpose of irrigation private 
property may be taken for private use, and I contend it 
can be under the constitution of the United States. 



346 ARTICLE I., SECTION 14 

Mr. HEYBURN. I would ask for the bill or 
amendment under consideration. 

The CHAIR. There are two amendments to this 
substitute and we are now discussing the merits of the 
original substitute; an amendment is offered to strike 
out too. 

Mr. HEYBURN. I am going to discuss briefly the 
amendments offered. My first impression as to the 
phraseology of this amendment or substitute was cor- 
rect, I find, upon re-examination of it. With all due 
deference to the joint committees that have reported 
this and the skillful manner in which the gentlemen 
have framed its language, yet I see I am correct in my 
first impression as to the construction to be placed on 
the first sentence, and I will call the attention of mem- 
bers particularly to it, because I submit that it will not 
accomplish the purpose for which it is intended. It 
reads : 

"The use of lands necessary for the construction of 
reservoirs, or storage basins for the purposes of irri- 
gation or for rights of way across such lands." Across 
what lands? Lands necessary for the purpose of con- 
structing reservoirs and storage basins; those are the 
"such lands" that are referred to. I say the word 
"such" should be stricken out, so that this right should 
be granted across all lands, and I submit that I am 
correct in this criticism. They say here: "The rights 
of way across such lands" and "such lands" are defined 
to be the lands necessary for the construction of reser- 
voirs, or storage basins for the purpose of irrigation or 
for the right of way across such lands. Those are the 
"such lands" that are referred to. Now that would 
limit the rights of way intended to be conferred under 
that provision. Further it would deprive mining 
ditches and mining flumes from receiving any benefit 
under that provision. I am in favor of going just as 
far, right up to the line of possibility in this matter, 
of conferring the right of eminent domain in reference 
to irrigation and mining. I am in favor of the pro- 



ARTICLE I., SECTION 14 347 

visions contained in the Colorado constitution, for one 
reason, because they have already been passed upon by 
the judiciary of the district courts of the United States, 
and have been accepted by the congress and president 
of the United States as proper measures and within the 
scope of the powers we have. They have been in other 
words adjudicated by one of the high courts in the 
land, and if we go to them with the same provisions in 
our constitution, they cannot criticize them, because 
we have the precedent established by themselves and 
we are safe. I am in favor of providing in this con- 
stitution that the corporations and individuals shall 
have the right to condemn the right of way across 
agricultural lands and across mining lands for useful 
and necessary purposes; but I do not find in this pro- 
posed substitute, or amendment to the substitute I 
believe, that it is confined to cases of necessity. The 
case of necessity should be clearly set out and estab- 
lished and defined, that is to say a man should not be 
allowed wantonly to condemn his neighbor's land for 
any purpose whatever. He should not be allowed to 
manufacture a necessity, a fictitious necessity, in order 
that he may take that which his neighbor particularly 
prizes. The necessity should be such that the court or 
jury would see it from the face of the matter. The case 
of necessity should be left to the court to determine 
whether it was necessary or not. Then if a mining 
corporation or an individual seeks to take his neighbor's 
property, his neighbor may raise the question of neces- 
sity, and say that the placing of your mill there to 
require the making of that waterway is a wanton act, 
that it is not necessary, that you should place it on your 
own land because you own all the property around 
there, and you can place it in such a manner that it 
would not be necessary to take this ditch through my 
land but you can construct it over your own. Instead 
of putting your mill on the other side of your property 
so that it would be necessary to bring your water 



348 ARTICLE I., SECTION 14 

through my property to your mill, you bring your 
water through your own. 

I say these questions of necessity should be left to 
the court to determine and the rights of the individual 
should be guarded against a wanton taking or con- 
demnation of a man's land. I say that a man or a cor- 
poration which would desire to oppress an individual 
owner, a poor man or any other class of men that 
might lie below him, ought not to have the right, ex- 
cept in case of necessity, to go down upon that man's 
land and stop up his tunnels a ad make a dump over his 
grounds, if he has property of his own upon which he 
can make it. So that I say that question of necessity 
should be clearly expressed in this substitute. Now it 
is a well known principle of construction that if the 
constitution says as this does, in the last clause, "Pri- 
vate property may be taken for public use, but not 
until a just compensation to be ascertained in the man- 
ner prescribed by law therefor shall be paid." Now 
I say it is not right for the constitution to place that 
limitation upon the legislature, and it is a limitation 
upon the power of the legislature. It would not be 
competent for the courts or the legislature to say that 
you may take that property or use it for any purpose 
until after that compensation had been paid, and an 
appeal would tie up the attempt to take the benefits of 
this provision until the appeal was determined. I say 
there should be a provision in there such as is embodied 
in the amendment I sent up "or the money deposited 
in court on such conditions as the court may prescribe," 
because if the money is deposited in court that has 
been assessed as the value of this property, and if that 
individual whose property was taken was willing to 
accept that amount of money, then his rights are pro- 
tected fully, as that money stays there subject to the 
determination of this issue between them; and the con- 
stitution places that limitation upon the legislature by 
the provisions of this proposed substitute, so that it 
would not be competent for the legislature even to say 



ARTICLE I., SECTION 14 349 

that the court may require the money to be deposited 
and prevent that man from taking it, because the word- 
ing means delivery to the party and does not mean de- 
posit to his credit. 

We want to move carefully in this matter, because 
when we have done that we will not be able to undo it 
perhaps. 1 say leave that last clause off; leave it for 
the legislature to provide entirely, or else remove that 
limitation from it, one or the other. Either strike out 
that word "such" before lands, or else enlarge that so 
that it will cover cases of mining ditches and flumes 
that are necessary to take the water around the sides 
of the mountains in order to give pressure to run the 
machinery of mills. Don't let us have anything am- 
biguous or uncertain, anything that will need con- 
struction by the courts. I believe that this convention 
and that the people of this state represented in this 
convention, have the right to say that private prop- 
erty may be taken for these uses, but I concur with 
the suggestion of the gentleman from Nez Perce, (Mr. 
Reid,) that the phrase "for any useful or beneficial 
purpose" should be stricken out, because it is indefinite. 
"Any useful or beneficial purpose" is an indefinite ex- 
pression, and there should be nothing indefinite in the 
constitution. Enumerate every use to which you intend 
to apply this principle and then stop. But don't leave it 
in any way possible for somebody to say that it is use- 
ful he should take your property, when in all conscience 
and common sense it is not for any useful purpose ex- 
cept to himself; useful to whom, the proprietor or the 
public? Useful in the interests of developing the 
country, or useful in the interests of the pocketbook of 
the man who takes it? I say that expression is too in- 
definite to be in any constitution, and there should be 
no "ifs" or "ands" about it. When you have enumer- 
ated these uses — and I don't see any enumerated here 
that are not proper on the face of them — when you 
have enumerated them stop, and leave out the expres- 
sion "any useful or beneficial use," because it is in- 



350 ARTICLE I., SECTION 14 

definite. With these remarks I am in favor of the 
substitute; make it definite and certain. 

Mr. KING. Mr. Chairman, I would like to ask a 
question of these gentlemen that are objecting to this 
bill on the ground that it is taking private property for 
private use. It seems to be their argument — they will 
all admit the fact — that private property may be taken 
for public use upon just compensation being paid for it. 
What I want to understand from these learned men is, 
who is to determine what is a public use. Is it a ques- 
tion that must be left to the courts, or is it a question 
to be left with the people? That is what I want to 
understand. If it is a question to be left with the 
courts we have nothing to do with it; if it is a ques- 
tion to be left to the people, as we represent the people, 
then it is for us to decide. For instance, if you admit 
the right to take a right of way for agricultural pur- 
poses, who is to determine that that right of way for 
the use of a farmer across there is a public use, when 
it is a well-known fact that that ditch is dug for the 
benefit of that particular individual? It seems to me 
that that is a private use just as much as it is to take a 
ditch for a mine; why not? Then who is to decide what 
is a public use and what is a private use? If we are 
going to decide that question then we must specify in 
our constitution those things that we consider a public 
use. We must specify clearly and distinctly what use 
is a public use and what a private use. If we can take 
private property for a public use, tell me what is a 
public use and who is to decide. I do not understand 
yet. Some of these men learned in the law may tell 
me if they will what is a public use and who decides 
what is a public use, whether it is the courts or whether 
it is the people of the state in their constitution. 

Mr. CLAGGETT. Mr. Chairman, all that anyone 
wants is to get rid of objections. The objection which 
has been made by Mr. Heyburn I think is not well 
taken as a matter of construction, but by just simply 
changing the place of the word "necessary" it covers 



ARTICLE I., SECTION 14 351 

the whole business and then I will read the section 
through, going back to the first clause: 

"The necessary use of lands for the construction of 
reservoirs;" I change it you see. "The necessary use 
of lands for the construction of reservoirs or storage 
basins for the purpose of irrigation, the necessary use 
of lands for rights of way across such lands for the 
construction of canals, ditches, flumes or pipes to con- 
vey water to the place of use for any useful or bene- 
ficial purpose, the necessary use of lands for the drain- 
age of mines or the working thereof by means of roads, 
railroads, tramways, cuts, tunnels, shafts, hoisting 
works, dumps, or other necessary purposes 

Mr. HEYBURN. Put in "flumes or otherwise" and 
you will have it. 

Mr. CLAGGETT. I have it in here: "drainage of 
mines, etc., or other necessary purposes;" that covers 
all those above. 

Mr. HEYBURN. Why not put it right in there? 

Mr. CLAGGETT. It is all in here above: "The 
necessary use of lands for rights of way across such 
lands for the construction of canals, ditches, flumes or 
pipes to convey water to the place of use for any use- 
ful or beneficial purpose" which covers mines, irriga- 
tion and power. 

Mr. HEYBURN. It says: "Across such lands." 
See what lands you have described. 

Mr. CLAGGETT. "The necessary use of lands for 
the construction of reservoirs or storage basins for the 
purpose of irrigation; the necessary use of lands for 
rights of way across such lands" — what lands? 

Mr. HEYBURN. For the use of reservoirs and 
basins. 

Mr CLAGGETT. Not at all. Oh, you mean to 
strike out the words "such lands?" 

Mr. HEYBURN. Yes. 

Mr. CLAGGETT. I would not consent to that. By 
consent that can be done, but I will now read: "The 
necessary use of lands for the construction of reser- 



352 ARTICLE I., SECTION 14 

voirs or storage basins for purposes of irrigation, the 
necessary use of lands for rights of way for the con- 
struction of canals, ditches, flumes or pipes to convey 
water to the place of use for any useful or beneficial 
purpose, or for drainage; the necessary use of lands 
for the drainage of mines or the working thereof by 
means of roads, railroads, tramways, cuts, tunnels, 
shafts, hoisting works, dumps, or other necessary 
means to their complete development; the necessary 
use of lands for any other use necessary to the complete 
development of all the material resources of the state 
or the preservation of the health of its inhabitants is 
hereby declared to be a public use." Now that is the 
way I read it in substance. I have gone back to the 
first clause. 

Mr. HEYBURN. Why not put in "ditches and 
flumes'' in the section that deals especially with mines, 
and save any ambiguity? 

Mr. CLAGGETT. Because I don't want to limit it 
to mines. That raises the question that has been 
raised by the gentleman from Nez Perce. I do not pro- 
pose to limit this matter to the question of mines and 
irrigation. I say if a man wants to start a manufac- 
turing establishment anywhere which will give employ- 
ment to hundreds of people in all human probability, 
but who wants to take out a ditch which shall go 
down and convey that water to the place of use as 
power, he ought to have that right, and the right to 
condemn land for a right of way crossing private lands, 
for the purpose of getting to his place of use. And 
this phase "useful or beneficial purpose" is a phrase 
which is used in all the decisions of courts with refer- 
ence to appropriating the use of water. If you turn to 
your own state you will find it here, with regard to 
appropriations that may be made for any useful or 
beneficial purpose. In order to enjoy the use of water 
for any useful or beneficial purpose, it is absolutely 
necessary that there shall be a right of way across 
lands, in order to get from the point of diversion to the 



ARTICLE I., SECTION 14 353 

place of use, and therefor this substitute as suggested 
by the committee this morning, covers all these mat- 
ters and leaves the whole thing to the regulation and 
control of the state. Now in answer to the question of 
my friend from Shoshone, which was an exceedingly 
pertinent inquiry, as to in whom is lodged the power 
to determine what is a public use, I will say that it is 
lodged in the sovereign power of the state. 

Mr. KING. That's it. 

Mr. CLAGGETT. And if you do not put such a 
provision — and we are here to define and limit this 
power to necessary uses for useful and beneficial pur- 
poses, and to preserve the welfare of the inhabitants 
and develop the resources of the state — if you do not 
put that necessity in this constitution as a limit upon 
the sovereign powers, speaking through the legislature, 
I say here that the legislature can go on and subject 
private property to any purpose whatever without re- 
striction, and that is the reason why this thing should 
be put in the constitution, not as a grant of power to 
the legislature, for the legislature has got the power 
already unless we see fit to limit it and control it, but 
as an expression to the legislature of the purpose for 
which this thing may be done, and leaving to them the 
method within the scope of the authority herein con- 
veyed, to define the manner by which this power shall 
be exercised. 

I would like in conclusion to say simply that I am 
trying to meet these objections which in any shape or 
form may be raised to the provisions reported. I 
would ask unanimous consent to insert after the words 
"public use" the words "to be subject to the regulation 
and control of the state." If there is no objection I 
will put it in. It is implied anyway, and you can put 
it in in specific terms, and then we will know who it 
is that is going to have the power, and then I will 
read it again. 

Mr. HEYBURN. Can the state delegate that power 
to the judiciary? 



354 ARTICLE I., SECTION 14 

Mr. CLAGGETT. No, sir. 

Mr. HEYBURN. The state is an indefinite thing 
then? 

Mr. CLAGGETT. The powers of every state, Mr. 
Chairman, are divided up between three co-ordinate 
departments. When you speak of regulation by the 
state, you speak of regulation by legislative authority. 
The functions of the judiciary are merely interpret- 
ative. They neither can make laws nor limit laws; 
they interpret the law as they find it. The constitution 
of the state tells the legislature how far they can go 
and what they may do. In pursuance of that power 
that is delegated by the sovereign to the legislature, 
laws are passed, and then the functions of the judiciary 
come in, and they interpret and construe and apply 
the law as given by the legislature in pursuance with 
the terms of the constitution. Of course the people 
can abolish the legislative department altogether if 
they choose, and provide that the judges shall get up the 
law to suit themselves; but we don't propose to do 
anything of that kind. I will now read this: "The 
necessary use of lands for the construction of reser- 
voirs or storage basins for purposes of irrigation or 
for rights of way for the construction of canals, ditches, 
flumes or pipes to convey water to the place of use 
for any useful or beneficial purpose, or for drainage, 
or for the drainage of mines or the working thereof 
by means of roads, railroads, tramways, cuts, tunnels, 
shafts, hoisting works, dumps, or other necessary 
means for their complete development, or any other use 
necessary to the complete development of the material 
resources of the state, or the preservation of the health 
of its inhabitants, is hereby declared to be a public 
use, and subject to the regulation and control of the 
state but not until a just compensation to be ascer- 
tained in the manner prescribed by law shall be paid 
therefor. " 

Mr. HEYBURN. I would ask the gentleman to read 
back towards "for any useful or beneficial purpose. ,, 



ARTICLE I., SECTION 14 355 

Mr. CLAGGETT. You mean that clause end- 



ing 

Mr. HEYBURN. — "for any useful or beneficial 
purpose." 

Mr. CLAGGETT. "Or for rights of way for the 
construction of canals, ditches, flumes, or pipes to con- 
vey water to the place of use or for any useful or bene- 
ficial purpose." 

Mr. HEYBURN. Add the word "necessary." 

Mr. CLAGGETT. Where? Why, it will not be 
necessary in one sense of the word, I have got that all 
in; "the necessary use of lands" for the purpose of 
conveying, etc., the right of way subjects it to the neces- 
sity. 

Mr. HEYBURN. That "necessary" there— it is 
"The necessary use of lands for the purpose" but the 
purpose should be necessary also; not only the use of 
lands themselves should be necessary, but the purpose 
itself should be necessary. 

Mr. CLAGGETT. You mean "useful, beneficial or 
necessary purposes?" 

Mr. HEYBURN. Yes. 

Mr. CLAGGETT. I have no objection to that; I 
will put it right in here. 

Mr. REID. Does the gentleman object to changing 
the "useful or beneficial purpose" to leave it to the 

Mr. CLAGGETT. No sir; I put it where it is be- 
cause I stand on the proposition that this right should 
be allowed, subject to control of the state for any useful 
or beneficial purpose. There in the case which the gen- 
tleman has himself put, that is to say the condemnation 
of a right of way, a right of way, an easement upon 
land — for this use is nothing but an easement and an 
easement is nothing but a use — a right of way across 
private lands even to carry water for the purpose of a 
tan-yard if there is anything of that sort — it is to be 
assumed that the legislature when it comes to regulate 
this question, is not going to job the constituency which 
sent them; it is to be assumed they will legislate with 



356 ARTICLE I., SECTION 14 

that degree of consideration which will protect the 
powers herein conferred upon the legislature and the 
limitations herein placed upon the legislature in such 
a manner as will promote the general welfare of this 
state. We are getting back to the old proposition too 
often suggested, namely, that in cases 

The CHAIR. The gentleman's time has expired. 

Mr. BATTEN. Mr. Chairman, the end which is ' 
sought to be attained by this measure is certainly one 
that we can all readily agree in, but the means seem to 
me to be questionable. I am reminded somewhat of a 
certain legal fiction devised by some of the old-time 
lawyers, in what the attorneys always denominated the 
action of trover. The substance of that action 
and the real purport of it was this, that John 
Doe may steal Richard Roe's property, and then 
under cover of the protection of a certain ridic- 
ulous fiction which these cunning lawyers de- 
vised, it was said that he found John Doe's property 
and appropriated it to his own use, thereby escaping 
all the pains and penalties of thievery. It is said the 
astute lawyers sought to excuse it by calling it a pious 
fraud. Now it seems to me that this is a parallel case 
with that to a certain extent. The primary object of 
this scheme is really to deprive a man of his goods and 
chattels, of his property, because it is real estate, under 
the specious pretext that it is being taken for a public 
use. Now that to my notion is tantamount to the old 
idea of pious fraud. The force of the mere declaration 
here that Mr. A. can take Mr. B's property by declar- 
ing it to be for a public use, I fail to see. I am willing 
to admit the force of the argument that we are labor- 
ing under a peculiar condition of things that does not 
prevail in other states, except to some extent in this 
intermountain region. We have vast tracts of arid 
land that need fructifying, need to be made productive, 
and I am willing to go as far as any man will go within 
the proper limits, in any measures or any schemes or 
plans that may be proposed, whereby this vast area of 



ARTICLE I., SECTION 14 357 

land may be reclaimed and made to support a teeming 
population. But I am not disposed to go to the extent 
that this measure proposes, because I say it is a spec- 
ious pretext to take the private property of the indi- 
vidual under the guise or false claim of its being a 
public use. I think in the consideration of this meas- 
ure the gentlemen are certainly proceeding in a com- 
mendable spirit of trying to avoid all these obnoxious 
features, and to get it into such shape as will make it 
less odious to us all, but I don't think it is in that shape 
yet. That clause ''beneficial or useful purpose" is very 
broad indeed; it gives almost an arbitrary power to 
any single man to take the property of his neighbor 
and claim protection under this broad, constitutional 
right that is sought to be injected into this constitu- 
tion. I am opposed to it for that reason. I believe we 
should add additional safeguards in this matter, recog- 
nizing the need of some action of this kind, in regard 
to these dump easements or whatever you call them 
that go with mines, and the rights of way that go with 
irrigating ditches. Still I am not disposed to violate 
my convictions on constitutional law and what is fun- 
damentally right and proper, to meet any exigencies 
that may arise, unless every safeguard is thrown around 
the measure proposed. 

Mr. WOODS. Mr. Chairman, the gentleman from 
Alturas who has just spoken has voiced in a measure 
my sentiments on this subject. I am opposed, certainly, 
Mr. Chairman, to doing by indirection that which we 
have a right to do directly, and I do not believe in 
calling this thing of taking private property for private 
use — I do not believe the declaration in the section 
proposed as the member has said, makes it a public 
use by any manner of means. I do claim that this 
convention has the power under the constitution to 
prescribe the taking of this private property for private 
uses in the way of easements, and in order to reduce 
this thing somewhat I move a substitute which I will 
send up. 



358 ARTICLE I., SECTION 14 

SECRETARY reads: "Private property shall not 
be taken or damaged for public use without just com- 
pensation. The taking of private property except for 
private ways of necessity, and for easements for reser- 
voirs, drains, flumes, ditches, pipes, or other means 
to appropriate water for agricultural, mining, milling, 
domestic or sanitary purposes, and for roads, railroads 
or tramways over or across the lands of another, shall 
be prohibited, and all appropriations hereby excepted 
shall be made in the manner prescribed by law, and 
then only by making just compensation to the owner." 

Mr. AINSLIE. Mr. Chairman, I move the adoption 
of the substitute offered by the gentleman from Sho- 
shone. (Motion seconded). 

Mr. • McCONNELL. Mr. Chairman 

Mr. AINSLIE. I have not yielded the floor yet, Mr. 
Chairman. 

The CHAIR. That is correct. 

Mr. AINSLIE. The substitute reported this morn- 
ing, which I understand to be the concurrent action of 
some gentlemen on these committees, appears to me 
nothing but a sugar-coated pill — sugar-coated for the 
purpose of catching the votes of the agriculturists, and 
it may be also to get the vote of the monopolists and 
corporations who can crush out mining men and mining 
enterprises for the benefit of their own. As to the 
question of constitutionality or the right of this con- 
vention to incorporate in the constitution a provision 
for taking private property for private use, the ques- 
tion of the sovereignty of the people as we propose to 
put it in our constitution here in the Bill of Rights, is 
a question that has been thoroughly discussed in the 
last twenty or thirty years. We are told by all the 
republican newspapers and by all the republican 
statesmen that the state's right doctrine was a heresy 
and state sovereignty was politically dead. I am glad 
to see some leading lights of the republican party 
residing in this territory like prodigal sons return to the 
fold. I am glad to see such able men as the gentleman 



ARTICLE I., SECTION 14 359 

from Shoshone admit that the doctrine of state's rights 
is not a heresy, but that the states do possess certain 
rights, that state sovereignty still exists among the 
people and in the state organization. If it is dead as 
claimed by the majority of their party, in the attempt 
to take private property for private use as proposed in 
this measure, they are in the position of trying to 
revive a political corpse and infuse the breath of life into 
it by this amendment. Now there should be something 
done by this convention. Everyone admits the neces- 
sity of placing something within the organic law of 
the state by which the purpose of irrigating all these 
unimproved public lands may be accomplished. Nobody 
denies the necessity of it. We should also incorporate some 
measure by which the lands of water appropriators 
throughout this territory cannot be shut out of water 
by one single proprietor. But gentlemen, when you 
admit the right of private ownership in private prop- 
erty, you must so guard the provisions of the organic 
law that no ^injustice may be done to the individual. 
There is a provision of law well known to lawyers and 
probably to many laymen, that is recognized through- 
out the civilized world wherever the law is enforced, 
that he who is first in point of time is first in right. 
Now are we going to reverse all the laws of every 
civilized country? Are we going to admit the right, 
when it was contended for years and years before all 
the highest courts in the United States that you can- 
not even take private property for public use or for 
public purposes? Are you going beyond all the safe- 
guards that have been hedged around the rights of the 
individual for the protection of his property, and come 
in here in this convention and say for the new state 
begging for admission into the Union, that the property 
of one individual may be taken and given to another 
and call it a public use? While I admit the doctrine 
that private property may be taken for public uses 
upon a just compensation being paid, as incorporated 
in the organic law of every state, I deny the right of 



360 ARTICLE I., SECTION 14 

anybody, of any legislative body or convention, to take 
the property of one individual and give it to another. 
Bo it under the forms of law if you choose, but it is 
nothing but legalized robbery, an invasion of the inalien- 
able rights of the individual to possess his own property 
and protect it, and we propose today to incorporate in 
the charter of this state the right to take an individ- 
ual's property from him and give it to another, but 
r/ot taking it for a public use. Now, gentlemen, it is 
impossible to accomplish that without injustice. I 
question the statement of one of the gentlemen here, 
that all persons interested in the welfare of the state 
are supporting the substitute first presented in this 
convention this morning. I know of no people more 
interested in the welfare of Idaho than those who came 
here and discovered it and have been living in it twenty 
or thirty years, and have lived under a territorial organ- 
ization, under a system almost of communism. I know 
of no people who will appreciate the benefits of liberty 
more than the people who have lived under this old 
system of vassalage. I do not know a set "of men who 
will appreciate the privileges and rights of liberty which 
will be granted them by the constitution and admission 
into statehood more than those who, like myself and 
many others sitting in this convention, have been living 
in territories all of their lifetime. But sir, in striking 
for liberty, in striking for more freedom and more 
rights than we have enjoyed under the territorial sys- 
tem, we should carefully guard and protect the rights 
of the individual as against the encroachments of mon- 
opolists and the encroachments of other individuals who 
are entitled to equal rights but not higher than those 
who are here first. 

Now, if I am engaged in developing the material 
resources of this state, or the necessary resources, as 
denominated by the gentleman in some of his amend- 
ments, I may have a twenty or forty acre patch of 
land up here above a small canyon, and been living there 
for years upon it, have my dwelling house upon it, my 



ARTICLE I., SECTION 14 361 

little home. Forty acres of land is sufficient for my 
purpose, it is my homestead, there my children are 
born and raised. People come in and settle the lands 
below me, half a dozen or a dozen take up some land, 
wealthy people. These people own 640 or 1000 acres 
of land. Now under the provisions of this substitute 
if they consider, in the interest of developing the ma- 
terial resources of the state, that they should farm or 
cultivate more land than I am able to farm or culti- 
vate, they can put a dam across that ravine, condemn 
my forty-acre tract for a reservoir and run me out 
altogether, by giving me a nominal consideration, for 
the benefit of those people who have settled below the 
canyon. Now that can be done if you adopt this in 
your constitution. I say protect the rights of every 
individual, and do not take the property of one man 
and give it to another. And therefore, I am opposed 
to any such provisions as are attempted to be incor- 
porated in this constitution, and in favor of the substi- 
tute offered by Major Woods of Shoshone. 

Mr. McCONNELL. Mr. Chairman, the question 
arises now to put an end to this matter. I regret the 
necessity of taking any steps which would deprive fu- 
ture generations of reading or us from listening to the 
eloquence of these gentlemen, but we have had a gen- 
eration of talk on the question of state's rights. I will 
therefore move the previous question. (Seconded). 

Mr. BE ATT Y. Which is the previous question? 

Mr. REID. Does not that motion have to come 
from the chairman of one of the two committees having 
the bill in charge? 

Mr. McCONNELL. I think any member on this 
floor is entitled to move the previous question, which 
recurs on the previous motion. 

The CHAIR. If I understand the rule, the gentle- 
man must be supported. 

Mr. CLAGGETT. It has been seconded by several 
members. 

The CHAIR. The question is: Shall the main 



362 ARTICLE I., SECTION 14 

question be put? Are you ready for the question? 

Mr. BEATTY. Before that is done I would like 
to know what the main question is. 

The CHAIR. It is upon the original substitute as 
offered by the gentleman from Oneida, Mr. Standrod. 

Mr. McCONNELL. And that as I understand, was 
the report of the joint committee? 

Mr. STANDROD. Yes. 

Mr. CLAGGETT. That original prooosition by 
unanimous consent, to simplify these matters, was to 
be amended by putting that word "necessary" in 

The CHAIR. I will state to the joint committee 
that as to unanimous consent I don't know anything 
about it. There was some amendment that was sent 
up by Mr. Heyburn that has never been disposed of 
by motion. He has not withdrawn the amendment, nor 
has it, so far as the committee is concerned, been re- 
ferred at all by his consent. 

Mr. HEYBURN. Some changes were made; I 
don't know how far 

Mr. CLAGGETT. The words "or necessary" were 
put in and the phrase "subject to the control and regu- 
lation of the state." 

Mr. BEATTY. Before that question is put I would 
call for the reading of the resolution upon which we 
are to vote, so that we will understand distinctly what 
we are voting on. 

The CHAIR. The question is upon the previous 
question now — the main question. That must be sup- 
ported; then we vote upon the resolution, the gentle- 
man from Shoshone's motion; the secretary will please 
read it. 

SECRETARY. What shall I read? 

Mr. POE. I would like to vote intelligently upon 
this question but Mr. Claggett, as I understood, had 
what purported to be a substitute offered by Mr. Stand- 
rod, and in that there were certain alterations or 
changes made which covered the objections made by 
Mr. Heyburn; that is my understanding. 



ARTICLE I., SECTION 14 363 

Mr. CLAGGETT. Yes, I think so. 

Mr. POE. Now I want to know if we are voting 
upon the proposition made by Mr. Standrod, as altered 
by Mr. Claggett at that time. 

Mr. CLAGGETT. That was done by unanimous 
consent. 

Mr. REID. If that is the case, I make the point 
of order that the first thing in order under Rule 20 
would be the substitute offered to the main question 
by Mr. Woods; the main question comes last. First is 
the substitute offered by Mr, Woods, then my amend- 
ment, then Mr. Heyburn's, then the main question, in 
each case in the inverse order. 

The CHAIR. The rule on the motion for the pre- 
vious question is, that before a vote on the same a call 
of the convention is in order; that is the rule. 

Mr. REID. Yes. 

The CHAIR. "That if the demand for the previous 
question shall have been sustained, no call shall be in 
order, and the convention shall be brought to an imme- 
diate vote, first, upon the pending amendments in the 
inverse order of their age, and then upon the main 
question." (Reading from Rule No. 20). 

Mr. REID. I maintain, sir, under the rule that the 
main question has not been altered, but it will be altered 
and then the vote shall be in the inverse order, Mr. 
Woods' first, and then mine, and then Mr. Heyburn's. 

Mr. McCONNELL. Is there any rule of parlia- 
mentary law upon which you can vote on an amend- 
ment when the roll is called on the previous question? 

Mr. REID. If the clerk will read Rule 20, he will 
find it there. 

The CHAIR. I will read the rule upon the pending 
question: (Reading Rule No. 20). Now it seems to 
me the vote must first be had upon the substitute to 
the substitute, as made by Mr. Woods. I cannot find 
any other construction to be placed upon it. 

Mr. CLAGGETT. I rise to a point of order. There 



364 ARTICLE I., SECTION 14 

is nothing before this house; the question is: Shall 
the main question now be put? 

Mr. REID. That's it; the other questions they 
are talking about now would be in order when the 
previous question is ordered by the convention, but 
they are out of order now. 

The CHAIR. Very well; then the convention is 
in order and the chair is out of order as I understand 
it, (laughter) if the gentlemen cannot place any other 
construction upon it than the gentleman from Nez 
Perce. 

Mr. REID. The point the gentleman from Shoshone 
makes is that we ought to vote upon the main question; 
we have not voted upon that yet. 

The CHAIR. There is no doubt about that. The 
question now before the convention is : Shall the main 
question be put? (Vote.) The ayes have it. Now the 
main question shall be put, and this is the motion of Mr. 
Woods, as I understand it. 

Mr. REID. I ask that it be read. 

Mr. CLAGGETT. I ask that the original propo- 
sition may first be read, and then the pending amend- 
ments in their order. 

Mr. REID. I make the point of order under the 
rule that it is to put in the inverse order. 

Mr. CLAGGETT. I do not question about the order 
of putting that; I ask that they be read simply. 

The CHAIR. The secretary will read it. 

SECRETARY reads: "Section 14. The use of 
lands necessary for the construction of reservoirs or 
storage basins for purposes of irrigating or for rights 
of way across ■" 

Mr. BE ATT Y. Which is being read now? 

The CHAIR. If the gentlemen will allow the chair, 
I will ask the secretary to read the substitute offered 
by Mr. Standrod this morning. 

The SECRETARY. That was the one I was read- 
ing. " — such lands for the construction of canals, 



ARTICLE I., SECTION 14 365 

ditches, flumes or pipes to convey water to the place 
of use for any useful " 

Mr. HEYBURN. Mr. Chairman, the one that is 
being read by the clerk is not the original, and the 
changes I think are not in it. 

Mr. CLAGGETT. Yes they are. 

The CHAIR. This is the original offered by Mr. 
Standrod. 

Mr. CLAGGETT. He is not reading from the 
copy, where the committee agreed that these amend- 
ments might be made to the copy, and that was done 
by unanimous consent, and it states a part of the 
original proposition. 

SECRETARY reads Section 14 as revised: "The 
necessary use of lands for the construction of reser- 
voirs or storage basins, for the purposes of irrigation, 
or for the rights of way for the construction of canals, 
ditches, flumes or pipes to convey water to the place of 
use, for any useful, beneficial or necessary purpose, or 
for drainage; or for the drainage of mines, or the 
working thereof by means of roads, railroads, tramways, 
cuts, tunnels, shafts, hoisting works, dumps or other 
necessary means to their complete development, or any 
other use necessary to the complete development of the 
material resources of the state or the preservation of 
the health of its inhabitants, is hereby declared to be 
a public use, and subject to the regulation and control 
of the state. 

"Private property may be taken for a public use, 
but not until a just compensation, to be ascertained in 
a manner prescribed by law, shall be paid therefor." 

Mr. REID. Now I ask that my amendment be 
changed by unanimous consent so that it will meet the 
change made by the gentleman from Shoshone. The 
original amendment read to strike out "any useful or 
beneficial purpose." He has put in the word "neces- 
sary." I want the amendment to read now "for any 
useful, beneficial or necessary purpose" so as to strike 



366 ARTICLE I., SECTION 14 

out that clause. I ask unanimous consent that that be 
done. 

The CHAIR. If there are no objections it will be 
so ordered. 

Mr. CLAGGETT. I would suggest to the gentle- 
man from Nez Perce that it embrace the word "pur- 
pose" also after the word "necessary." 

Mr. RE ID. Yes, I want to strike out that clause 
"for any useful, beneficial or necessary purpose" so as 
to limit it entirely to mining and irrigating. 

The CHAIR. Now the question is upon the substi- 
tute as offered by Mr. Woods. 

SECRETARY reads: "Private property shall not 
be taken or damaged for public use without just com- 
pensation. The taking of private property except for 
private ways of necessity, and for easements for reser- 
voirs, drains, flumes, ditches, pipes, or other means 
to appropriate water for agricultural, mining, milling, 
domestic or sanitary purposes, and for roads, railroads 
or tramways over or across the lands of another, shall 
be prohibited, and all appropriations hereby excepted 
shall be made in the manner prescribed by law, and 
then only by making just compensation to the owner." 

The CHAIR. Are you ready for the question, which 
is upon the adoption of Mr. Woods' substitute? (Vote). 
The nays seem to have it. (Division called for. Ris- 
ing vote, 16 affirmative, 38 in the negative). The mo- 
tion is lost. Now the question is on the adoption of the 
amendment offered by Mr. Reid of Nez Perce. 

Mr. REID. I call for a division. (Rising vote, 15 
in the affirmative, 32 in the negative). 

The CHAIR. The amendment is lost. The question 
now is on the original motion to adopt the substitute 
offered by the committee reported this morning. 
(Vote). The chair is in doubt. (Rising vote, 39 in 
the affirmative, 11 in the negative). The motion to 
adopt the substitute prevails. 

Mr. BEATTY. I now move the adoption of the 
substitute as amended, as Section 14. (Seconded). 



ARTICLE I., SECTION 14 367 

Mr. HEYBURN. I call the attention of the com- 
mittee to the fact that the title of this section will need 
to be changed by striking out the word "private." I 
move that the words "private and" in the title where it 
occurs the second time be stricken out. (Seconded and 
carried) . 

The CHAIR. The motion prevails and the words 
"private and" are stricken out. The question is now on 
the adoption of the section as amended. 

Mr. AINSLIE. Is it on the adoption of the whole 
section ? 

The CHAIR. On the whole section; the motion is 
that the substitute be adopted. 

Mr. BEATTY. My motion, Mr. Chairman, was 
that the section as amended be adopted. 

Mr. REID. It has not been amended; it is a sub- 
stitute. 

The CHAIR. This is a substitute. 

Mr. CLAGGETT. I rise to a point of order. It has 
already been adopted. It was proposed as a substitute 
for this convention to consider, and it has been adopted 
by the convention. 

Mr. BEATTY. I will withdraw my motion, Mr. 
Chairman. 

The CHAIR. The gentleman withdraws his mo- 
tion and the substitute is adopted for the entire Sec- 
tion 14. 

Mr. WILSON. I move that the committee rise, re- 
port progress and ask leave to sit again. (Seconded 
and carried). 

CONVENTION IN SESSION. 

Mr. MAYHEW. The chairman of the committee 
of the Whole desires to submit its report. 

SECRETARY reads: Mr. President, the committee 
of the Whole have had under consideration the report of 
the committee on Preamble and Bill of Rights, have 
come to no conclusion thereon and ask leave to sit 
again. A. E. Mayhew, Chairman." 



368 LEAVES OF ABSENCE 

Mr. TAYLOR. I move that the report of the com- 
mittee of the Whole be adopted. (Seconded and car- 
ried.) 

It is moved and seconded that the convention take a 
recess until 2:00 p. m. (Carried.) 

RECESS. 

CONVENTION called to order by the President at 
2:30 p. m. 

Mr. MAYHEW. I suggest, Mr. President, that the 
roll be called to see whether a quorum is present. (The 
roll is called by the clerk and a quorum found present). 

LEAVES OF ABSENCE. 

Mr. PYEATT. I would like to ask for leave of 
absence for my colleague, Mr. Andrews; it is my opin- 
ion he will not return again but I can't say as to that. 

Mr. PRESIDENT. What is the reason? 

Mr. PYEATT. He did not express to me the full 
purport of it, but he said he had important business 
at home that he must attend to; if the convention holds 
any great length of time he would return, if it does 
not he will not return. 

Mr. PRESIDENT. Indefinite leave of absence is 
requested for Mr. Andrews of Lemhi county. Is there 
any objection? 

Mr. MORGAN. Is Mr. Andrews going away today? 

Mr. PYEATT. Yes. 

Mr. MORGAN. I think a man ought to state when 
he requests leave of absence what his reasons are; it 
is important that he should return. 

The CHAIR. Gentlemen, I think it is necessary to 
excuse him under a vote of the house. 

Mr. PYEATT. I move that Mr. Andrews be al- 
lowed leave of absence. (Seconded). 

Mr. GRAY. I would like Mr. Andrews to come 
and state the reasons, if he has reasons. 

Mr. MORGAN. I have been informed that his 
father is sick, and that his father has been attending to 



COMMITTEE REPORTS 369 

his business. Perhaps the gentleman who moved for 
leave of absence can tell. 

Mr. PYEATT. It is my opinion that it is not the 
principal cause, but that his business is of such a na- 
ture that he would not care to come into this room and 
make his business known. His father is not well also. 
He has not expressed to me exactly the cause. 

Mr. PRESIDENT. It is moved and seconded that 
Mr. Andrews be granted indefinite leave of absence. 
(Carried.) 

Mr. ARMSTRONG. I desire to ask leave of ab- 
sence until next Monday evening. I have important 
business to attend to. 

The CHAIR. Is there any objection? There being 
no objection Mr. Armstrong is excused. 

Mr. SHOUP. I move that when this convention ad- 
journs it adjourn to meet tomorrow morning at nine 
o'clock. (Seconded and carried.) 

COMMITTEE REPORTS. 

Mr. HEYBURN. Mr. President, with the consent 
of the convention I submit the report of the Judiciary 
committee. 

SECRETARY reads: Mr. President, your com- 
mittee on the Judiciary herewith submit their report 
and beg leave to state that on the question of the man- 
ner of selecting the judges of the Supreme Court they 
are unable to agree and herewith submit two reports, 
sections numbered 6 and 7 on that question. W. B. 
Heyburn, Chairman. 

Mr. PRESIDENT. The report of the committee 
will lie upon the table and be printed. 

Mr. ARMSTRONG. The committee on Labor 
wishes to report. 

SECRETARY reads: Mr. President, the commit- 
tee on Labor hereby submit to the convention their an- 
nexed report. Respectfully, H. Armstrong, Chair- 
man. 

Mr. PRESIDENT, The report will lie upon the 



370 ARTICLE I., SECTION 15 

table and be printed. What is the pleasure of the con- 
vention ? 

Mr. HASBROUCK. As I am informed there are 
some members that have got excused, the committee 
on Ways and Means have to report the mileage of mem- 
bers, and on behalf of the committee on Ways and 
Means I request that those members, if any there be, 
report to the committee their mileage, so that the com- 
mittee may report the same to this convention. 

Mr. MORGAN. I move that the convention go into 
the committee of the Whole on the general orders of the 
day. Carried. 

COMMITTEE OF THE WHOLE IN SESSION. 

Mr. MAYHEW in the Chair. 

Section 15, Article I. 

The CHAIR. Section 15 and Article I. is the first. 
(The secretary reads Section 15 as reported). 

Mr. SHOUP. Mr. Chairman, I wish to offer an 
amendment. 

SECRETARY reads: Strike out in the third line 
after the word "law" the words "or in cases of tort." 
Also all after the word "fraud." 

Mr. REID. I offer a substitute for the whole sec- 
tion. 

SECRETARY reads: Substitute for Section 15: 
There shall be no imprisonment for debt in this state 
except in cases of fraud. (Seconded). 

Mr. REID. That expression "only upon re- 

fusal to deliver up his estate for the benefit of his cred- 
itors in such manner as shall be prescribed by law" I 
think is a little too broad; it leaves to the legislature 
the enactment of an insolvent law which might affect 
their rights. As recognized now in most states you 
can arrest a debtor in a civil action in any case of 
fraud, for instance an absconding debtor. I do not 
like the expression there "where there is a strong pre- 
sumption of fraud." I think the affidavit should always 



ARTICLE I., SECTION 17 371 

show such a state of facts that the court in passing 
upon it shall find there was fraud when he issues the 
order of arrest, and the substitute I have sent up em- 
bodies the statement contained in most constitutions. 
Where there is fraud he can always be arrested, as an 
absconding- debtor. The words "or in cases of tort" 
I think might as well be left out, but wherever there 
is a civil transaction tainted with fraud you can arrest 
the debtor. To provide there shall be no arrest except 
in cases of fraud, I think covers all cases. 1 

Cries of "Question." (Vote). 

The CHAIR. The ayes have it. The substitute is 
adopted. 

Section 16. 

SECRETARY reads Section 16, and it is moved and 
seconded that the same be adopted, which is carried. 

Section 17. 

SECRETARY reads Section 17, and it is moved and 
seconded that it be adopted. 

Mr. HEYBURN. I have sent up an amendment. 

SECRETARY reads: Amend by inserting after 
the word "affidavit" in the third line the words "show- 
ing such probable cause." 

Mr. REID. I second the amendment. 

Mr. HEYBURN. Mr. Chairman, the object of 
that is, that in drawing it, it does not show to what the 
affidavit shall be directed, and it should be directed of 
course to the subject of showing probable cause, and 
should on its face show it. 

Mr. CLAGGETT. I would suggest striking out the 



-This section as originally reported appears to have been 
based upon Section 12, Article II of the Colorado Constitu- 
tion, which is as follows: "That no person shall be imprisoned 
for debt, unless upon refusal to deliver up his estate for the 
benefit of his creditors, in such manner as shall be pre- 
scribed by law, or in cases of tort where there is a strong 
presumption of fraud." 



372 ARTICLE I., SECTION 18 

words "support" and put in the words "be shown' 7 so 
that it will read: "without probable cause be shown by 
affidavit.' 7 

Mr. HEYBURN. I accept the amendment. 

Mr. SINNOTT. I have an amendment which 1 
wish to offer. 

SECRETARY reads : Substitute the word "unlawful" 
for the word "unreasonable" in the second line. (Sec- 
onded). 

The CHAIR. The amendment is offered to strike 
out the word "unreasonable" and insert the word "un- 
lawful." (Vote). The motion is lost. 

Mr. CLAGGETT. I move the adoption of the sec- 
tion as amended. (Carried). 

SECTION STRICKEN OUT. 

SECRETARY reads Section 18 and it is moved and 
seconded that the same be adopted. 

Mr. HEYBURN. I move to strike out Section 18. 

Mr. HAGAN. I second the motion. 

Mr. HEYBURN. Mr. Chairman, the object of mov- 
ing to strike this section out, is because it belongs in 
the Judiciary department of the government and is al- 
ready provided for, inasmuch as it has been reported 
by Section 5 of the Judiciary Act, describing the crime 
of treason; the same provision is contained in the Ju- 
diciary department and does not belong to the Bill of 
Rights. 

The CHAIR. It is moved and seconded that Sec- 
tion 18 be stricken out. (Vote.) The ayes seem to have 
it. (Division called for. On rising vote, 32 in the af- 
firmative, 12 in the negative). The motion is carried. 
Section 18 is stricken out of the Bill of Rights. 

Section 18. 

SECRETARY reads Section 19. (18). 
Mr. CLAGGETT. I suggest that this section be 
numbered 18 to take the place of the one stricken out. 
It is moved and seconded that the section be adopted. 



ARTICLE I., SECTION 19 373 

Mr. HOWE. Mr. Chairman, I move to strike out 
the word "to" in the second line after the word "af- 
forded" and substitute the word "for." 

Mr. CLAGGETT. I second the motion. 

It is moved and seconded that Section 18 be adopted 
as amended, which is carried. 

Section 19. 

SECRETARY reads Section 19 (according to 
changed numbering, being section on elections). 

Mr. CLAGGETT. I move to amend by inserting 
the words "and lawful" after the word "free" in the 
second line, so that it will read "interfere with or pre- 
vent the free and lawful exercise of the right of suf- 
frage." 

Mr. HEYBURN. I second the motion. (Carried). 

Mr. PINKHAM. Mr. Chairman, I desire to submit 
a substitute for the section which was read. 

SECRETARY reads: Substitute for Section 19 the 
following: All elections authorized by the laws of the 
United States and of this state shall be free and equal. 

The CHAIR. Is there any support to the amend- 
ment? 

Mr. MORGAN. I second the amendment. 

Mr. PINKHAM. Mr. Chairman, it seems to me 
that there are too many restrictions upon elections of 
all kinds. It does not confine itself to elections held un- 
der the authority of Congress, but it goes to all elec- 
tions, that they shall be free; it does not use the word 
"equal" at all, but that they shall be free, open and 
legal, and no power, civil or military, shall interfere 
with them. Now I have known circumstances only a 
few years ago, especially in some of the states of this 
Union, where the writ of habeas corpus was suspended 
and that elections were held under military authority 
when it was in full force after the suspension of the 
writ of habeas corpus. Such conditions as that might 
arise with us, in cases for instance of insurrection or 
rebellion in our midst, when it would be actually neces- 



374 SECTION I., ARTICLE 19 

sary for the governor to suspend the writ of habeas 
corpus and an election should be ordered, it would be 
necessary for us to have something of this character in 
the constitution, or leave out this portion of it entirely; 
because there would be a condition of circumstances 
in which those in authority would conflict, and it would 
be impossible to hold an election under those circum- 
stances; for that reason I move the substitute. 

Mr. AINSLIE. I don't understand that expression: 
"Free and equal." I don't see how you can have equal 
elections. I never saw the expression used in reference 
to elections. All men are created free and equal, ac- 
cording to the Declaration of Rights, but how you can 
have an equal election is not plain to me. All elections 
shall be free and open, is a proper term to use. I don't 
know what an equal election would be, unless every can- 
didate would have an equal number of votes. 

Mr. PINKHAM. In reply to the gentleman who 
has just taken his seat I refer him to every constitution 
of the eastern states. I have before me this section in 
the constitution of the state of Illinois which reads: 
"All elections shall be free and equal." 1 (Vote.) 

The CHAIR. The noes have it; the substitute is 
lost. What is the pleasure of the committee? 

Mr. HEYBURN. I move that after the word "open" 
in the first line we insert the words "and by secret 
ballot." 

Mr. BE ATT Y. I object to that, because that is a 
matter to be provided for in another report, in the re- 
port of the committee on Elections and Suffrage is the 
proper place for it. 

Mr. HAGAN. I think it is a good place for it in 
the Bill of Rights. 

Mr. AINSLIE. I move to strike out all of the sec- 
tion down to the word "no" in the first line, to leave it 
to read "No power, civil or military, shall at any time 
interfere with or prevent the free and lawful exercise 
of the right of suffrage." Mr. Chairman, in moving 



i— Art. 2, Sec. 18, 111. Const. 1870. 



ARTICLE I., SECTION 20 375 

that amendment, I do it for the reason that the provis- 
ion with regard to the manner of holding elections by 
ballot was committed to the committee on Suffrage and 
Elections, and that is provided for in another report, 
and it is unnecessary to put it in the Bill of Rights. 
(Seconded). 

The CHAIR. The question is now on the amend- 
ment offered by Mr. Hagan. (Vote). The chair is in 
doubt. (Rising vote, 20 in the affirmative, 29 in the 
negative). The motion is lost. The question is now 
on the amendment offered by Mr. Ainslie. Is it sup- 
ported? (The motion is seconded). (Vote). The 
chair is in doubt. (Rising vote, 26 in the affirmative, 
opposed 23). The motion prevails, the amendment is 
adopted. The question now recurs on the adoption of 
the section as amended. It is moved and seconded that 
the section be adopted as amended. (Carried.) 

Section 20. 

Mr. REID. I offer the following amendment. In 
Section 20, line 1 after the word "property" insert the 
following "or educational." The object of the amend- 
ment is simply that in prescribing that no property 
qualification shall be required, that no educational 
qualification shall be required either. I don't think a 
man should be required to read and write or any other 
qualification, to entitle him to vote. I have seen some 
of the best men in the country that had to sign their 
names with a cross-mark, and they were just as safe 
depositaries of the business of the state as the graduate 
of a university, and I do not think an educational quali- 
fication should be required; I hope the amendment will 
be adopted. 

Mr. SHOUP. I wish to offer an amendment to the 
section. 

SECRETARY reads: Amend Section 20 by insert- 
ing after the word "office" in the second line the words 
"except in school elections or elections creating indebt- 
edness." 

Mr. BEATTY. I second that amendment. 



376 ARTICLE I., SECTION 20 

Mr. SWEET. Mr. Chairman, I don't propose to 
take the time of this convention on this amendment 
proposed by the gentleman from Nez Perce, Mr. Reid, 
but I hope it will not prevail. While under the status 
of affairs in this state today I would not be in favor of 
adding an amendment requiring an educational quali- 
fication for suffrage, at the same time we do not know 
what class of people may become citizens of this state, 
how many of them or where they may come from, and it 
may be very desirable some time to require this quali- 
fication, to insist that the voter know something about 
the fundamental principles of state government and 
that he can read the fundamental law, and it may be 
desirable to have such a qualification, but I don't think 
it is a good idea at the present time. 

Mr. BEATTY. I think it is bad enough to send out 
over the world a section, even as drawn, that does not 
prescribe an educational qualification, but I think it 
would be even worse to say to the world that we. will 
positively provide that no educational qualification shall 
ever be required. I hope the amendment of the mem- 
ber from Nez Perce will not prevail. As we leave it 
here, we leave it that all may vote, but we do not want 
for all time to bind ourselves to that kind of provis- 
ion. The emergency may arise when we may want to 
say that we value and encourage education in this terri- 
tory, and I am opposed to any proposition so broad as 
that, to say to the world we do not care whether the 
people can read or write the English language or not, 
and that is what it amounts to. 

Mr. POE. If the present constitution is such that 
it would be proper that this amendment should go in 
here — it is the present that we are looking out for, it 
is the present we are legislating for, and we are also 
legislating for the future. I am unalterably opposed 
to putting in any qualification whatever as to the right 
of exercising the elective franchise. There are many 
persons in this territory who have never had the oppor- 
tunities of some of the gentlemen who oppose this, good 



ARTICLE I., SECTION 20 377 

citizens, men who know what is right and what is 
wrong as well as the learned gentlemen who oppose it. 
Why, we have a provision now in this constitution, or 
proposed provision, to allow Indians not taxed the 
right of suffrage; that is now pending. How many of 
those Indians who had renounced their tribal relations 
but have never had any advantages of education, 
brought up in ignorance, could exercise that right if 
this restrictive bar was put upon it? But I believe it 
to be an absolute wrong for us at this time to deny any 
American citizen the right of suffrage on account of 
his ignorance. Every man in this country is presumed 
to be equal in law; there is no distinction, and no man 
who is an American citizen should be deprived of that 
right unless he is convicted of some crime or associated 
with some organization that is inimical to our institu- 
tions; and though perchance this particular man has 
been unfortunate in his early days, neglected by his 
parents, and therefore cannot read or write, I say it 
would be an injustice to him now to deprive him of that 
right. We are not sending out to the world the idea 
that we are opposed to education; nothing of the kind; 
but we are endeavoring to do what is just and what is 
right. We in this constitution will publish to the world 
that we are in favor of public schools, that we are in 
favor of education and the dissemination of knowledge 
and of the arts and sciences. Now while we are doing 
this it seems to me right at the same time that we 
should not take away from him, the poor man who has 
been unfortunate in his early days, and deprive him of 
his right of citizenship. I do not think it is right, gen- 
tlemen, and therefore I shall favor the amendment, that 
the words "educational qualification" shall be placed 
there. 

Mr. REID. I have but one word to offer in reply 
to my friend from Latah. The Judiciary committee 
have reported a plan of amending this constitution, that 
where two-thirds of the general assembly recommend 
an amendment, it may be submitted to the people. As 



378 ARTICLE I., SECTION 20 

our interests may require or as the public safety may 
demand, we can limit the suffrage. But especially in 
a territory am I opposed to it. You have not had the 
common schools nor the subscription schools nor the 
means for education in the territories that you have in 
the east. I know of no such qualification in the states; 
doubtless it may exist in some, but there is many a man 
and boy who has grown up here without having the 
opportunity of attending school, a class of men who 
don't have these facilities and advantages of civiliza- 
tion, and who have grown up without these educational 
qualifications. The residents of this territory may 
change, and I am ready as any man to take up that 
question hereafter, and I propose to disfranchise the 
dangerous elements that may come in; we will dis- 
franchise this class of citizens. If I am not mistaken 
the committee on Education have reported a bill in 
which they require children between certain ages to 
go to school. That is a requirement which we propose 
to incorporate in our laws, but I do not propose that 
there shall be any test put upon the suffrage in our 
new state, so far as my individual vote is concerned, 
except that of true manhood. If a man is a citizen who 
obeys the law, does what is right, don't connect him, as 
my friend says, with any organization that counten- 
ances crime; if he is a citizen of this territory, and 
comes up in every other respect to the qualifications 
prescribed by law, don't say that he can't vote for the 
people who tax him, simply because he was unfortunate 
in his early days and could not have the blessings of 
education that he wished for himself. 

Mr. SWEET. These gentlemen seem to talk as if 
there was a provision in this constitution requiring 
educational qualification for suffrage or for the exer- 
cise of the right of suffrage. There is no such provis- 
ion here as I understand it. I do not understand fur- 
ther that there is any disposition to insert such a re- 
quirement in this constitution. The objection urged 
here is that it prevents such a qualification ever being 



ARTICLE L, SECTION 20 379 

made. Now take the case referred to by Mr. Poe: sup- 
pose two or three reservations are opened here, and 
a thousand Indians are permitted to vote at once, with- 
out any knowledge whatever of the laws of this coun- 
try, or of the English language, or of the customs of 
society, or in any way fitted at all for citizenship or 
to exercise the right of suffrage. Now I say it is no 
more than right that they be required to know a little 
something about our government and our people, at 
least as much as would be attained in learning how to 
read and write. I would not be in favor of having this 
clause in our constitution at this time. 

Mr. REID. That would not do in Nez Perce county; 
Indians who have severed their tribal relations vote, 
and is there any evil 

Mr. SWEET. I think they did on county seat 
questions. 

Mr. REID. Didn't they on all other questions? 

Mr. SWEET. I never saw any. (Laughter.) 

Mr. REID. Don't some of them vote the Republi- 
can ticket? 

Mr. SWEET. I have no doubt they do. 

The CHAIR. I think the objection is well taken. 

Mr. SWEET. What objection? ' 

The CHAIR. Of the gentleman from Nez Perce. 

Mr. SWEET. Well, I think it is reserving no 
greater right than we ought to, and it is a matter of 
necessity. 

Mr. POE. What we are complaining about is this: 
It says that no property qualification shall ever be 
required of any person to vote or hold office. Now that 
does mean that an educational qualification can be en- 
grafted in our law. That is what I am objecting to, 
and therefore we wish to prevent the legislature from 
passing a law requiring an educational qualification to 
vote. 

Mr. GRAY. Mr. Chairman, I can hardly see the 

force of this amendment. I read the section and it says : 

No property qualification shall ever be required for 



380 ARTICLE I., SECTION 20 

any person to vote or hold office." Now if we are to 
bind ourselves by this constitution that we require that, 
then I might just refer now to the report of the Judic- 
iary committee, which requires that gentlemen be 
learned in the law, etc., but no such qualification it 
seems now must be required. We do not require it. 
This section don't require it for suffrage or for any- 
thing else. Now, on yesterday we were asking the 
gentleman from Nez Perce if he was not willing to 
leave something to the legislature. Are they afraid 
they will shut out their party vote, or some of their 
party vote, or some sections of the country that never 
intend to learn to read or write? Perhaps it may never 
be the law, but I do say this, that I believe the time will 
come when probably it will, and when that time does 
come, probably the legislature will take it in hand and 
enact such laws as will be just and equitable at that 
time. There would be some force in this objection if 
that educational proposition was to be in here, if it 
was a requirement here. But no, we leave it as it is; 
they are all voters now and probably will be, and I fail 
to see their object in putting that in there; can't we 
trust our legislature to deal with it? Let them take 
care of that when the proper time arises. The only 
thing is that this section gives as much right to hold 
office as it does to exercise the suffrage, and there is no 
qualification, no educational qualification for holding 
office, a school office or any other office. Why, I hate 
to see such a constitution as that go out to the world, 
to say that a man need not have any educational quali- 
fication at all to hold office. 

Mr. BEATTY. I will ask the gentleman a ques- 
tion : Would it not be an inducement to an ignorant 
population, to come in here instead of intelligent peo- 
ple? 

Mr. GRAY. Well, it would seem that we are trying 
to here. (Applause). If there was any restriction, 
if they had an educational qualification in here, there 
would be some force in this amendment, but I cannot 



ARTICLE L, SECTION 20 381 

see any now whatever, and further than that I would 
hate dreadfully to see that engrafted in our constitu- 
tion. 

Mr. MORGAN. If this amendment was inserted, 
a man who could neither read or write could appear as 
a candidate for superintendent of schools in the county, 
and there would be no law against it. 

Mr. REID. When there is an express provision 
put in the constitution, and a declaration of right in the 
Bill of Rights, does not the express prohibition or 
declaration in the constitution take precedence and 
become the law over any declaration in the Bill of 
Rights? 

Mr. MORGAN. As a matter of course it does. 

Mr. REID. Then the declaration that a judge shall 
be learned in the law must take precedence. 

Mr. MORGAN. I am not speaking of that. 

Mr. REID. That was the argument made by Mr. 
Gray which you are upholding. 

The CHAIR. Mr. Morgan has the floor. 

Mr. BEATTY. I would like to ask the gentleman 
from Nez Perce county a question. 

The CHAIR. Does the gentleman from Bingham 
yield the floor? 

Mr. MORGAN. I think I had better say what I 
have to say first, and then let him go on. With the 
amendment inserted in the constitution which is pro- 
posed by the gentleman from Nez Perce, there is 
nothing to prevent a person from running and being 
elected as superintendent of schools in every county or 
any county in this proposed state, who could neither 
read nor write. There is nothing to prevent a person 
from running for election to the office of the clerk of 
the district court; yet he might not be able to read and 
write at all. I think there is not a constitution in the 
Union, so far as I can see from the very hasty examin- 
ation I have made, that has this provision in it, and I 
would like to ask the gentleman if there are any con- 
stitutions which have it. 



382 ARTICLE I., SECTION 20 

Mr. REID. None at all, Mr. Chairman. If the 
people want to elect a man of that sort, let them do 
it. I remember the fact that Andrew Johnson learned 
to read and write after he was 21 years of age and he 
was good enough to be elected vice-president. 

Mr. MORGAN. That was after he had learned to 
read and write; the people would not have elected hirn 
if he had not learned. 

Mr. HEYBURN. Mr. Chairman, I would be rather 
inclined to favor a provision that would require that in 
ten. years no person should be allowed to vote who 
could not read and write, to compel these people to 
learn to read and write who have been here so many 
years that they have had time enough. I do not offer 
this as an amendment at all, but I say I would favor an 
amendment of that kind rather than to favor an amend- 
ment so unusual as to require that it should never be 
made a qualification. Of course this will be an inter- 
esting question to us. They are dividing these Indian 
lands in severalty, and putting them in a position where 
they can demand the franchise, and if we had a provis- 
ion that no person after a certain time could vote unless 
they could read and write, we would prevent these peo- 
ple voting. If this law was made in the northwestern 
states where public school books are in Norwegian and 
Swedish, that would compel them to learn to read the 
English language and it would be so much better for 
the nation. I certainly shall oppose this amendment. 

Mr. LEWIS. There is another reason. It is a well 
known fact that in the Mormon church a very large 
percentage of the members of that church in this terri- 
tory today are unable to read or write, and the source 
of their strength is the fact that in their ignorance 
they have absolute control of all their material affairs. 

Mr. REID. Will you allow me to ask you a ques- 
tion? 

Mr. LEWIS. Yes; two of them. 

Mr. REID. Is not every Mormon precluded under 
another declaration of this constitution from voting? 



ARTICLE L, SECTION 20 383 

Mr. LEWIS. The Mormon church and the position 
they take today, and the position which their mission- 
ary in this city has suggested, is this: That this very 
legislature be restricted in its powers, and that is the 
very reason we should object to having the change that 
the gentleman proposes inserted. 

Mr. REID. But it is provided in this very declar- 
ation I refer to that the legislature may restrict the 
powers of the voter in the future. 

Mr. LEWIS. And that is the reason why Mormon 
citizens stand here and maintain the proposition that 
the legislature shall not restrict the ignorant popula- 
tion, thereby preventing the Mormon church from con- 
trolling the people of this territory. 

Mr. REID. I will ask the gentleman a question 
if he will yield a moment; if in this very Bill of Rights 
itself is it not declared that every man who in any man- 
ner belongs to that church, who aids, abets, or counsels 
it, or contributes to it in any way, is precluded from vot- 
ing, without requiring an additional qualification? 

Mr. LEWIS. Very true. 

Mr. REID. Then if that is true, would not that ex- 
clude him, no matter what the additional qualification 
was? 

Mr. LEWIS. I will answer my friend with proof 
when he gets through. However, I wish to suggest 
here that that is a great amendment, and that is the 
position of the Mormon church in relation to the action 
of this convention, and I can prove it if the gentleman 
wishes to have it. That is the very position the Mor- 
mon church takes in this convention and in this consti- 
tution, that no restriction shall be placed, so far as it 
is concerned, upon the right of suffrage, so that if they 
have the majority in the legislature they can demand 
this elective franchise, and I say that is another reasor 
why we should guard the matter and vote that amend- 
ment down. 

The CHAIR. Did I understand the gentleman to 
say that in this convention on the part of Mormonism? 



384 ARTICLE L, SECTION 20 

Mr. LEWIS. No, I say the position which they 
take in regard to the action of this convention. 

The CHAIR. In this convention? 

Mr. LEWIS. Yes, the action which the convention 
may take, so far as the restriction in the constitution 
which they may prepare, that they desire this restriction 
shall not be too broad, but shall be limited, that is, the 
right of the legislature to make it. I say that is one 
more reason why the right of qualification, so far as 
education is concerned, should be included. 

Mr. REID. Just one word. I will not trouble the 
convention long, but since the gentleman has said some- 
thing about missionaries in the Mormon church, I 
desire to state to the convention that I knew nothing 
about any missionary. I will state further that this 
question has been on this floor before; I have had the 
honor to preside over the democratic caucus, and have 
presided over it and called it every time it has been 
held since this convention assembled, and the statement 
that a missionary or Bishop Hoge or any outsider has 
ever been in that caucus or ever present or taken any 
part in it in any way in favor of the Mormon church is 
untrue. If there is any missionary here in this town 
influencing anybody's vote or anybody's action, I know 
nothing about it. I offered this amendment in good 
faith, because I am not in favor of a man who has 
money in his pocket to send his children to school and 
another man who is too poor even to support them — to 
force him to go to the public school to learn to read 
and write, or that there should be a property qualifica- 
tion prescribed for him. I lived in a town 

Mr. SWEET. Are we allowed to speak twice on 
this question? 

The CHAIR. The gentleman objects to speaking 
more than twice on the question. 

Mr. REID. The gentleman had his say, and I rise 
to a question of personal privilege. The gentleman's 
intimation is that a missionary in this city or in this 
town is influencing the vote of this convention; it 



ARTICLE I., SECTION 20 385 

might have been considered to apply to myself. He 
made the explanation, or it was made to appear that 
that was one reason why the Mormon church wanted 
this done, that they were in favor of this. He stated 
the reason why; he introduced it; he said he could prove 
it. I do not care anything about it if he can. I defy 
him or any other gentleman to prove that any Mormon 
missionary influenced me in my action in this matter 
or in any other. 

Mr. LEWIS. I will simply explain to correct that 
impression, that I didn't say any missionary was in 
any democratic caucus or intimate anything of the 
kind. I hope the gentleman will not state that because 
it is not the fact. 

Mr. REID. Didn't the gentleman state a missionary 
was trying to influence the action of the convention? 

Mr. LEWIS. I will explain just what I said and 
what I meant. I say that the position of the church is 
represented by its members. 

The CHAIR. In the convention? 

Mr. LEWIS. I didn't say in the convention; I say 
— I don't say in this convention, I say there has been 
no missionary in this convention, nor in any caucus of 
this convention, but I say that their wish is, as to the 
action of this convention, that the legislature shall not 
have the power to restrict the suffrage by a property 
or educational or other qualification, which may affect 
their power in this territory. 

Mr. REID. What I desired to say, Mr. Chairman, 
in explanation of that was; the only reason is, I never 
intend to cast a vote that will make a distinction be- 
tween the rich man's son and the poor man's son. I 
have lived in a country where one-half of them could 
not read and write; they went to the ballot box and 
voted and cast their vote intelligently; I never saw 
that they mismanaged it 

Mr. SWEET. I object to the gentleman's speaking 
continually, unless we can all have a chance to talk. 

The CHAIR. The gentleman is called to order. 



3 86 ARTICLE I., SECTION 2 

(Cries of question.) 

The CHAIR. The question is on the amendment 
offered by Mr. Reid of Nez Perce. Are you ready for 
the question? All in favor of the motion prevailing 
say aye, those opposed no. (Loud chorus of "noes.") 

The CHAIR. The motion is lost. The next amend- 
ment in order is that of Mr. Shoup. 

SECRETARY reads: Amend by inserting after 
the word "office" in the second line the words "except 
in school elections or elections creating indebtedness." 
(Vote.) 

The CHAIR. The ayes seem to have it. It is 
moved and seconded that the section as amended be 
adopted. 

SECRETARY reads section as amended : No property 
qualification shall ever be required for any person to 
vote or hold office, except in school elections or elections 
creating indebtedness. (Carried.) 

Mr. PEFLEY. I wish to offer an additional section. 

SECRETARY reads: "No money shall be drawn 
from the treasury for the benefit of any religious or 
theological institution, nor shall any money be appro- 
priated for the payment of any religious service in 
either house of the legislature." (Seconded.) 

Mr. PEFLEY. Mr. Chairman, the object I have in 
introducing that addition or amendment to the Bill of 
Rights, is this; it is to save the disbursement of 
several hundreds of dollars at each convening of the 
session of the legislature. 

Not only that but it is to keep any sectarian lobby- 
ists or influences away from the legislature during its 
session. It also is to prohibit services that are dis- 
tasteful to a large majority or at least a large number 
of law makers in this day and age of progressiveness. 
I am opposed to that mode of taking money out of the 
treasury to pay for services for which the people re- 
ceive no adequate benefit. Not only that, but most of 
the legislators look upon these exercises as ostentatious 
bosh, and that they have no influence or any good 



ARTICLE I., SECTION 20 387 

effect upon the deliberations of a body that feels such 
exercises are preposterous. Not only so, but the people 
send their legislators to the capitol for a certain pur- 
pose; they send them there to make laws for the 
country, and not to make long-winded prayers them- 
selves or listen to them from others. Secondly, I am 
opposed in toto to taxing people for any sinecure office 
whatever. It is not necessary to say that congress or 
many of the states have these officers, or that the gov- 
ernment makes provision for their payment in the 
navy, in the army and territories of the United States, 
or that it is impossible not to have these officials in 
assemblies of this character, or that it is breaking 
down a custom hoary with age in legislatures gener- 
ally, or that it is in direct opposition to religion itself. 
All this, Mr. Chairman, has nothing to do with the 
question of legislation, which legislators are expected to 
perform with ability and dispatch. These old customs 
should be discarded; they are discarded in many of the 
great powers. The houses of parliament with their 
twenty-eight bishops have no exercises of this kind. 
The assembly of France has nothing of the kind; and 
very few of the courts, especially the Supreme Court of 
the United States. The legislatures of New York, 
Virginia, Pennsylvania, Illinois, Oregon, and perhaps 
others have no such exercises. They have done away 
with this expensive nonsense. I say "nonsense" from 
the fact that three-fourths of the law makers, as is 
well known, in America at least, are non-communi- 
cants of any society or sect, and take no interest in 
anything which cannot be demonstrated. The other 
one-fourth may belong to as many sects as there are 
members, and if you elect a Catholic or a Methodist, or 
a Baptist as a chaplain, he may have but few members 
that would care to hear his supplications, and the others 
all the time would consider him a heretic; yet each 
member would be obliged to hear something that he 
was opposed to, or else absent himself purposely; in 
either case it would divert his mind from the special 



388 ARTICLE I., SECTION 20 

duties which he is supposed to perform. But if these 
diurnal exercises are actually necessary, I am in favor, 
when the legislature convenes in this capital, to invite 
the whole clergy to come here and perform, so that 
each member may find his affinity, and let them pray 
and carry on their exercises as long and as late and as 
often as the tenets of their creed require, provided that 
the time so occupied does not impinge upon the legisla- 
tive hours, and that the members shall be required to 
settle the bill therefor. This is taken from a neigh- 
boring state constitution, 1 one of the most prosperous 
in the Union. They have had this provision in their 
constitution for thirty years, and I think perhaps it 
has a good deal to do with its prosperity, because they 
have saved many thousand dollars thereby. I move its 
adoption. 

The CHAIR. Is the motion supported? (Seconded.) 

Mr. POE. Mr. Chairman, I cannot sit quietly and 
hear such principles avowed in the blaze of the nine- 
teenth century, in this Christian age, in the age of 
civilization, the Christianity that now exists. I am 
astonished to see any gentleman get up in a delibera- 
tive body like this, in a constitutional convention organized 
as it were by the Christian people of this country, because 
we all claim, I think, to be Christians, we all, I think, 
claim that there is a Supreme Being to whom we look 
for aid and comfort in our hours of need; and yet 
there is a gentleman in this convention who has the 
effrontery, has the boldness, in the blaze of the nine- 
teenth century, to propose that the future legislation of 
this state shall be directed and empowered to with- 
hold from all deliberative bodies one who might offer 
supplications to the Divine Being 

Mr. PEFLEY. Will the gentleman allow me a 
moment ■ 

Mr. POE. for the reason, as he maintains, that it 

would be an expenditure of public money, that it is 



1 — Oregon Constitution of 1857, Art, 1, Sec, 5, 



ARTICLE I., SECTION 20 389 

wrong for the people to pay a chaplain, and therefore 
he wants an interdiction put in this constitution, for- 
ever denying to the people the right when assembled in 
their legislative halls to employ a chaplain. 

Mr. PEFLEY. Mr. Chairman, the gentleman has 
either misunderstood me, or else he intends to mis- 
represent me; I don't know which. 

Mr. POE. No sir, I don't intend to misrepresent 
you. 

Mr. PEFLEY. He says I deny the people having 
that privilege. I not only do not deny it, I agree to 
give it to them, but I wish every man that comes to 
the legislature to have persons to pray for him that 
are suitable to his sect. If you employ a chaplain, he 
may be elected by one majority; the other 49 or 29, 
or whatever the minority should be, may belong to 
other churches; his ministrations would be distasteful, 
his petitions would not suit them; they might all 
think he was a heretic. But my proposition is to allow 
every man his affinity, to invite the whole clergy to the 
capitol, to come and ministrate, but that they shall 
not take up the hours of legislation, and that each 
member shall foot the bill, because he received the 
benefit and not the people. That is my position, Mr. 
President. 

Member from ADA. This is my first attempt, Mr. 
President, to say anything in this convention; I cannot 
sit still. Does the gentleman from Ada forget our 
fathers and our forefathers, the founders of this re- 
public? Does he forget the example set to us from 
the Declaration of Independence down to the present 
day? Does he forget Washington, who bowed in the 
snow and adored the great architect of the universe? 
Does he forget that Lincoln, Washington and Jefferson 
set us the example? Gentlemen, I trust that this 
amendment will not prevail. I as a citizen of Idaho 
want us to recognize that Supreme Being who presides 
over the destinies of all nations. 

Mr. AINSLIE. I call for another reading of that 



3 90 ARTICLE I., SECTION 20 

amendment. It appears to me that a part of that 
should be adopted in the constitution, and a part I 
think not. 

SECRETARY reads: No money shall be drawn 
from the treasury for the benefit of any religious or 
theological institution, nor shall any money be appro- 
priated for the payment of any religious services in 
either house of the legislature. 

Mr. AINSLIE. I ask for a division of the question; 
I am in favor of the first part of it. I do not believe 
the money of the people in this state should be drawn 
from the treasury and appropriated to support any 
religion or religious institution of any kind. In several 
states, and I think the state of New York, there are 
probably a million or two dollars a year appropriated 
for schools and asylums which state they are under 
some particular denomination, not under the state gov- 
ernment at all. I believe in appropriating all the 
money necessary to support the institutions of the state, 
but I am opposed to appropriating the money of the 
people, or state money, towards the support of any 
denominational or religious institution of any kind. 
But I am in favor of allowing the people to have a 
chaplain, if they want it. 

Mr. GRAY. Let me ask the gentleman if Sec. 4 
of the Bill of Rights does not cover that? 

Mr. MORGAN. I think upon examination you will 
find that subject fully covered by the section in the edu- 
cational bill; it covers every point under discussion in 
this clause. (Cries of "Question.") 

The CHAIR. The question is on the adoption of a 
new section to the article, to be called section 21. I 
don't know that it demands a separate vote on this 
question; "No money shall be drawn from the treasury 
for the benefit of any religious or theological institu- 
tion. " Do you desire a separate vote on that, Mr. 
Ainslie? 

Mr. AINSLIE. There is a provision in section 4 



ARTICLE I., SECTION 20 391 

which says "no person shall be required to attend or 
support," etc. 

The CHAIR. Are you opposed to the adoption of 
the section? 

Mr. AINSLIE. I am in favor of the first portion, 
and of dividing it, to leave out the chaplain part. 

Mr. SWEET. I would like to say to Mr. Ainslie 
that I have seen the report of the committee on Educa- 
tion, — I don't know whether it is printed or not, — and 
they absolutely prohibit the apportioning of one dollar 
of public money to any sort of secret or denominational 
institution. 

Mr. AINSLIE. Very well; I am satisfied then. 

Mr. PEFLEY. I- — 

The CHAIR. The gentleman has spoken twice; if 
there is objection 

SEVERAL MEMBERS. I object. 

Mr. MORGAN. I hope the gentlemen will hear the 
gentleman in explanation. 

Mr. PEFLEY. Mr. Chairman, I don't wish that 
question divided; I want it to stand or fall altogether. 
If the people .of this territory or this coming state wish 
to carry on something that is hoary with age and hand- 
ed down from a barbarous generation to the present 
time, of course I cannot object; I am not a majority 
here. But gentlemen, I hear them talking about this 
blaze of the nineteenth century. According to my 
reading, the blaze of the nineteenth century does away 
with this nonsense, because many of the great states, — 
New York has more people than twenty or thirty such 
states as this alone, — they do not have it there. Thpy 
have done away with it in the Supreme Court of the 
United States. The Congress of course keeps it up, as 
a mere matter of form. And the question of economy 
is what is looked at more than anything else, from the 
fact that it is one of the questions upon which the 
adoption of this constitution will depend,- -the economy 
of the provisions made in it. And the idea of taking 
out several hundred dollars every session of the legis- 



392 HEADINGS TO SECTIONS 

lature, to pay for something that does no one any good, 
and that is a sinecure office in any way, shape or form 
you can put it 

Mr. BEATTY. I rise to a point of order. I under- 
stood tne gentleman rose simply for an explanation; it 
seems to be for an additional argument. It is the 
third time he has been on the floor. 

Mr. PEFLEY. I had permission to go on. 

Mr. BEATTY. We understood it was simply for an 
explanation. 

The CHAIR. The gentleman is in his third speech, 
and he cannot speak, unless it is by motion giving hixn 
permission. 

Mr. PEFLEY. Then I can sit down, I guess. (Cries 
of "Question/') 

The CHAIR. All those in favor of the adoption of 
the section offered by Mr. Pefley say aye, contrary no. 
(Vote.) The noes have it, the section is rejected. 

Section 21. 

SECRETARY reads: Sec. 21. "This enumeration 
of rights shall not be construed to impair or deny other 
rights retained by the people." 

It is moved and seconded that it be adopted. 

Mr. HEYBURN. I suggest striking out the word 
"popular" in the title. 

Mr. HOWE. I would like to know whether these 
headings are to be printed in the constitution or not. 

The CHAIR. I don't know what the committee on 
Revision are going to do. It is moved and seconded 
that the word "popular" be stricken out of the title. 
(Carried.) 

The CHAIR. The question is now upon the adop- 
tion of the section as read; it is moved and seconded 
that it be adopted. (Carried.) 

HEADINGS TO SECTIONS. 

Mr. GRAY. I call the attention of the chair to 
section 13, in the title to that, the right of accused 



HEADINGS TO SECTIONS 393 

persons to depositions in criminal cases, — by referring 
to the correction of this section, I see that depositions 
in criminal cases was stricken out, and it should be 
stricken out of the title. 

Mr. CLAGGETT. I do not suppose that anybody 
will imagine that when this comes to be incorporated 
in the constitution, these headings will be put in; it 
will be simply articles and sections. 

The CHAIR. Some have them in, and some have 
not. 

Mr. STANDROD. Whenever it is construed by a 
court, certainly the whole title of a section is no part 
of the section. 

Mr. GRAY. What harm would it be to strike that 
out? 

Mr. STANDROD. None at all. 

Mr. GRAY. I move that that part, depositions in 
criminal cases, shall be stricken out in the title. (Sec- 
onded and carried.) 

Mr. BEATTY. Mr. Chairman, as chairman of the 
committee on Revision, I would like to call attention to 
the fact that this report which we have been consider- 
ing has a heading to all the sections, while some subse- 
quent reports have no headings whatever. Now the 
committee ought to adopt some rule and ought to have 
some instructions from this body or from the conven- 
tion. We have no rule and no instructions upon it. 

Mr. SHOUP. I rise to a point of order; we are 
considering the preamble to the Bill of Rights, and 
have not yet adopted the Bill of Rights. 

The CHAIR. Well, do not by a point of order 
prevent any member from asking information. 

Mr. HAGAN. I think the preamble cannot be con- 
sidered until the whole constitution is adopted. It is 
the last thing to be acted upon. 

The CHAIR. What is the pleasure of the conven- 
tion? 



39 4 PREAMBLE 

Mr. CLAGGETT. I move that we adopt the pre- 
amble at the head of this article. (Seconded.) 

Mr. PEFLEY. Mr. Chairman, I wish to offer a 
substitute. 

SECRETARY reads: Constitution of the State of 
Idaho, Preamble: We the people of Idaho, to the end 
that justice be established, order maintained and liberty 
perpetuated, do ordain this constitution." (Seconded.) 

Mr. PEFLEY. Mr. Chairman, the reason why I 
offer that substitute is that there are no redundant, 
meaningless or ambiguous words in its composition. 
Every man, woman and child can understand that, and 
agree on every word as to what it means. Not only so, 
but it is no secret that in the greatest charter of 
liberty or freedom ever conceived, promulgated to the 
world by American men, they made plain statements in 
their preamble; and if such men as Washington, whom 
we consider the greatest man that ever lived in our 
own or any other age, such men as Franklin, the great- 
est philosopher that this continent ever produced, and 
Madison, the greatest law-giver, or rather framer of 
constitutions that the world has ever seen, and fifty 
others of their compatriots, — I say if they had no use 
for ambiguous words in the preamble of the constitu- 
tion of the United States, why should we, amateur 
statesmen here, far away in the sagebrush of Idaho, 
undertake to improve on their work, that has been ap- 
plauded all over this great universe, and is the grand- 
est and best work that ever fell from the hand of 
living men? (Cries of Question.) 

The CHAIR. The question is on the adoption of 
the substitute for the preamble, offered by the gentle- 
man from Ada. All in favor of the motion signify it 
by saying aye. 

Mr. PEFLEY. Aye. 

The CHAIR. Contrary, no. (Vote.) The noes seem 
to have it. (Laughter.) The amendment is lost. 



PREAMBLE 395 

Mr. PEFLEY. Mr. Chairman, I wish to offer an 
amendment. 

SECRETARY reads. Amendment to Preamble, 
article 1, State Constitution. Strike out in the first 
line all after the word "to" to the word "for" and in- 
sert in lieu thereof; "the Constitution of the United 
States." 

The CHAIR. Is there any support to the motion? 

Mr. BALLENTINE. I move that the committee 
rise, and that the bill be reported with the amendments 
to the convention. 

The CHAIR. The gentleman is out of order. 

Mr. CLAGGETT. Mr. Chairman 

Mr. BALLENTINE. But I understood the pre- 
amble to be adopted. 

The CHAIR. No; the question now before the 
committee is the adoption of the preamble. 

Mr. HAGAN. Mr. Chairman, I rise to a point of 
order; that the preamble is a clause in which we recite 
the fact that we do establish this as the constitution. 
We have made no constitution yet. After we get 
through with it, we go back and pass the preamble. 

The CHAIR. A particular rule provides that that 
shall be the last considered, whether it means the last 
of this article, or the entire constitution 

Mr. HAGAN. I think it refers to the entire con- 
stitution. This article is only one part of the consti- 
tution; it is the same as the title to a bill. That ques- 
tion was asked, and it was stated by the president of 
the convention Monday morning. 

Mr. CLAGGETT. Before the chair rules upon the 
matter, I would like to refer to Rule 53, which says: 
"as soon as any entire proposition for incorporation 
in the constitution shall have been disposed of, such 
proposition, if agreed to by the convention, shall be 
referred to the committee on Revision, to be by that 
committee embodied in the constitution;" and that is 
what is done with this report. It necessarily will go 
to the committee on Revision, as soon as it is agreed 



39 6 PREAMBLE 

to in the convention, and if we hang it up to the 
holidays, we hold it there until the whole thing is 
adopted. 

Mr. REID. Under Rule 49, directed to this ques- 
tion, it says; "In committee of the Whole propositions 
shall be read by the chairman or secretary, and con- 
sidered item by item, unless it shall be otherwise direct- 
ed by the committees, leaving the preamble, if any, 
last to be considered." That is, the preamble is to the 
whole constitution. It says that we do establish this 
whole constitution, in the Bill of Rights, and the whole 
proposition, to which this preamble refers, is not only 
the Bill of Rights but the whole constitution, and I 
think the point made by the gentleman from Shoshone 
is well taken. 

Mr. HEYBURN. That is not a part of article one, 
which we have been considering. 

Mr. CLAGGETT. Then in order to reach the mat- 
ter, so that we can get along into business, I move that 
when the committee rise it report the matter which 
has been considered by the committee in that article 
one, the Declaration of Rights, and recommend to the 
convention that it be turned over to the committee on 
Revision, to be incorporated into the constitution. 

The CHAIR. I think the only proposition before 
the committee now is the adoption of article one, as 
amended by the committee; until we have adopted it 
section by section, that that is not the adoption of the 
entire article. However, I submit that proposition to 
the committee. I think it would be proper to adopt 
the entire article as amended. 

Mr. HAGAN. We have got to go before the con- 
vention for that purpose. 

The CHAIR. No, the committee adopts it, and then 
recommends it to the convention. I think the proper 
motion would be to adopt it as a whole, and recommend 
its adoption by the convention. 

Mr. CLAGGETT. I will withdraw the motion then, 
which I have just made, and make that motion to ex- 



ARTICLE XIV., SECTION 5 397 

pedite business, that article one, the Declaration of 
Rights, be now adopted. (Seconded.) 

Article 1 adopted. 

The CHAIR. It is moved and seconded that article 
one be adopted by this committee, and that the com- 
mittee recommend its adoption to the convention. (Car- 
ried.) 

The CHAIR. I will decide as chairman, that the 
preamble is last to be considered by the convention 
under Rule 49. Gentlemen, that completes the consid- 
eration of the Bill of Rights; what is the pleasure of 
the committee? 

Mr. CLAGGETT. I call for the next regular or- 
der of business, and that is the report of the committee 
on Militia and Military Affairs. 

COMMITTEE REPORT ON MILITIA AND MILITARY AFFAIRS. 

Article XIV, — Section 1. 

SECRETARY reads section 1, and it is moved and 
seconded that it be adopted. (Carried.) 

Section 2. 

SECRETARY reads section 2, and it is moved and 
seconded that it be adopted. (Carried.) 

Section 3. 

SECRETARY reads section 3, and it is moved and 
seconded that it be adopted. (Carried.) 

Section 4. 

SECRETARY reads section 4, and it is moved and 
seconded that it be adopted. (Carried.) 

Section 5. 

SECRETARY reads section 5, and it is moved and 
seconded that it be adopted. ■ 

Mr. CLAGGETT. I would like to transpose the 
words, so as to make it read; "No military organiza- 
tion under the laws of this state shall carry any other 



398 ARTICLE XIV., SECTION 5 

device." It says now; " All military organizations — 
shall carry no other device." It is not good language. 

Mr. HAMMELL. I second the motion. 

Mr. HOWE. I would like to have it read. 

SECRETARY reads: No military organization 
under the laws of this state shall carry any other de- 
vice, banner or flag than that of the United States or of 
the State of Idaho. 

Mr. HAMMELL. I offer a substitute to the gen- 
tleman's amendment, to strike out the word "all," so 
that it will read; "Military organizations under the 
laws of this state shall carry no other device, banner 
or flag than that of the United States or the state of 
Idaho. It is in the negative, the way it stands now. 

Mr. CLAGGETT. It should be; "shall not carry 
any other device." I accept the substitute offered by 
Mr. Hammell. 

Secretary reads the substitute of Mr. Hammell. 

Mr. CLAGGETT. I move the adoption of the sub- 
stitute. 

Mr. MORGAN. I move the insertion of the word 
"organized" after the word "organization," so that it 
will read, "military organizations organized under the 
laws of this state." 

Mr. CLAGGETT. Is it intended that we shall allow 
military organizations from foreign parts to parade 
flags other than the flag of the Union? It is limited in 
that way; our own local companies can do nothing, but 
foreign companies that come here on business or any- 
thing of that kind may do it. My idea in regard to the 
language is that military organizations, whether or- 
ganized under the laws of this state or any other state, 
should not be permitted to parade anywhere in this 
state under any other flag except the flag of the country 
or of the state. 

The CHAIR. Is the amendment proposed by the 
gentleman supported? I see no support to the amend- 
ment. The question now recurs on the substitute sec- 
tion, 



ARTICLE XIV., SECTION 5 399 

Mr. MORGAN. The section is ambiguous as it 
stands. 

The CHAIR. The committee thinks differently. 

Mr. HAMMELL. I think I can suggest a word 
probably there that would satisfy the gentleman. " Mili- 
tary organizations, existing under the laws of this 
state, shall carry no other banner or flag than that of 
the United States or the state of Idaho." I offer that 
amendment. (Seconded.) 

Mr. HOWE. I move the amendment to the section, 
to strike out the words "under the laws of this state." 

The CHAIR. Gentlemen, you have heard the 
amendment proposed by the gentleman from Nez Perce. 
Is the motion supported? (Seconded). 

Mr. BEATTY. Mr. Chairman I have an amend- 
ment. (Laughter). My amendment is to make the first 
line read "No military organization shall in this state 
carry any other device, banner or flag than that of the 
United States or of the state of Idaho." 

Mr. AINSLIE. That last arrangement would pre- 
vent the parade of voluntary organizations in the mili- 
tia at all. I am not in favor of that. 

Mr. HAMMELL. It would prevent also voluntary 
military organizations from any other states from 
carrying their own state banner. 

Mr. BEATTY. I would submit the amendment I 
have reported there will not prevent any kind of mili- 
tary organization. 

The CHAIR. It is moved and seconded that the 
last amendment, sent up by the gentleman from Alturas, 
be adopted. 

Mr. HEYBURN. I should not like to see that 
amendment prevail, because if I understand it, it 
would prevent any number of military organizations 
from carrying their regimental flags, unless I misunder- 
stand the nature of it. 

Mr. TAYLOR. I move that all these amendments 
be laid on the table, and call for the previous question. 
(Seconded and carried). 



400 ARTICLE XIV., SECTION 5 

Mr. TAYLOR. I now move that we adopt the 
original section. (Seconded and carried). 

Mr. TAYLOR. I move now that the article be 
adopted as a whole by the committee, and that when the 
committee rise, it report the bill back to the convention 
and recommend that it be adopted. 

Mr. GRAY. I move that the committee rise and 
report all matters that have been before them to the 
convention. I don't know that it would be necessary in 
this motion to report progress and ask leave to sit 
again. 

The CHAIR. Probably the motion would be to 
rise, report these two articles to the convention, and 
recommend to the convention their adoption. 

Mr. GRAY. That is my motion. 

The CHAIR. It is moved and seconded that the 
committee now rise and report these two articles to 
the convention and recommend their adoption. (Car- 
ried). 

CONVENTION IN SESSION. 

Mr. CLAGGETT in the Chair. 

Mr. MAYHEW. Mr. Chairman, as chairman of the 
committee of the Whole, I beg to report that your com- 
mitte have had under consideration the article on the 
Bill of Rights and also the article on Militia, and de- 
sire until tomorrow morning to make their report. 
The clerks cannot arrange them intelligently before that 
time, unless you are going to have an evening session. 

Mr. CLAGGETT. The instruction was to report 
them now. 

Mr. MAYHEW. No sir, I beg your pardon, Mr. 
President, the motion was that the committee rise and 
report the two bills back with the recommendation for 
their adoption, not that we shall report now. 

The CHAIR. If there is no objection that action 
will be taken, although it does not agree with the ideas 
of the chair upon the subject. 



FOURTEENTH DAY 401 

Mr. GRAY. I move we adjourn until nine o'clock 
tomorrow morning. (Seconded). 

(Vote. Division called for. Rising vote, 24 in the 
affirmative, 21 in the negative). 

Mr. PRESIDENT. The motion to adjourn is car- 
ried. 



FOURTEENTH DAY. 

Saturday, July 20th, 1889. 

CONVENTION met at nine o'clock a. m., Mr. Presi- 
dent in the chair. Prayer by Chaplain. 

ROLL-CALL. Present: Mr. Claggett, President, 
Ainslie, Allen, Armstrong, Batten, Beatty, Ballentine, 
Bevan, Campbell, Cavanah, Chaney, Clark, Coston, 
Crutcher, Glidden, Gray, Hammel, Hampton, Harkness, 
Hasbrouck, Hays, Heyburn, Hogan, Howe, Jewell, King, 
Kinport, Maxey, Mayhew, McConnell, Melder, Myer, 
Morgan, Parker, Pierce, Pinkham, Poe, Pyeatt, Reid, 
Savidge, Sinnott, Shoup, Standrod, Steunenberg, Taylor, 
Underwood, Vineyard, Whitton, Woods, Andrews, Mc- 
Mahon, Pritchard, Lamoreaux, Lewis, Brigham, Pefley. 

Absent: Blake, Harris, Bobbins, Sweet, Wilson, 
Lemp. 

Excused: Anderson, Beane and Stull. 

Mr. BALLENTINE. I move that the reading of 
the minutes be dispensed with. (Seconded). 

Mr. CAVANAH. There is one part of the minutes 
I wish to make amendment to, and I don't see how I can 
have it amended unless they are read. I will state that 
it is all that part of the minutes that refers to that 
infidel resolution yesterday. I didn't want the Ada 
delegation to be plastered with such a name, and it 
seems they will be, because not one of them have got 
up to protest against it. 

The CHAIR. The chair would suggest that the 
committee on yesterday ordered the chairman to report 
back the two articles for incorporation in the consti- 
tution. The amendments which were proposed to those 



402 RESOLUTION OP INVITATION 

articles in committee have been preserved by the clerk 
in the minutes. The first and natural order of business 
will be, when we get through with the regular business 
of the day, for the consideration of the report of the 
committee of the Whole, and in the consideration of 
that report any amendment which was offered in the 
committee of the Whole may be offered again in con- 
vention, and no other amendment can be made; and 
therefore it is necessary in order to pass intelligently 
in the convention upon these bills when they come up, I 
think that we should have the minutes read, so that we 
may have them in our mind. I for one would like to 
have them read. 

Mr. BALLENTINE. I will withdraw my motion, 
Mr. President. (Secretary reads the minutes of yes- 
terday's proceedings). 

The CHAIR. If there are no objections to the min- 
utes as read they will stand as approved. 

RESOLUTION OF INVITATION. 

Mr. AINSLIE. I ask unanimous consent to offer a 
resolution at this time. 

The CHAIR. Is there any objection? 

SECRETARY reads: Resolved, That a committee 
of three be appointed to receive the delegation of Mem- 
bers of Congress who will visit this city next week, of 
which committee the Governor be requested to act as 
chairman, and extend to the said delegation of Con- 
gressmen an invitation to visit the convention, and that 
the privilege of the floor be granted them. (Seconded 
and carried). 

Mr. CAVANAH. Mr. President, I desire to offer 
a motion with reference to these minutes. I don't know 
whether this is the proper time or not. 

The CHAIR. All motions are out of order unless 
by unanimous consent, until the reports of committees 
are received. 

Mr. PEFLEY. I object. 



WAYS AND MEANS 403 

The CHAIR. Objection being made, under the 
rules it will have to be deferred until 

Mr. REID. I rise to a point of order. The gen- 
tleman's motion is to correct or expunge a part of the 
minutes. Does not that follow immediately the reading 
of the minutes? 

The CHAIR. No sir, I think not. The only ques- 
tion that would come up in connection with the reading 
of the journal is to correct the journal to make it cor- 
respond with the facts, and the motion to expunge is 
a separate and independent proposition that must come 
up for action as any other proposition does. I will 
read the rule so that the gentleman from Nez Perce 
will see: "As soon as the Journal is read and corrected 
as aforesaid, the President shall call for: Presenta- 
tions of Petitions and Memorials, Reports of Standing 
Committees, Reports of Select Committees, Final 
Readings," etc. It will then be in order for the gentle- 
man's motion to be made. Presentation of Petitions 
and Memorials: (None). Reports of Standing Com- 
mittees : 

Mr. MAYHEW. The committee of the Whole de- 
sires to report. 

The CHAIR. The chair will have to rule the report 
out of order. We are now calling for reports of stand- 
ing committees. 

COMMITTEE REPORT — LIVE-STOCK. 

Mr. HARKNESS. As chairman of the committee 
on Live-stock I desire to submit the following report: 
Mr. President, we your committee on Live-stock beg 
leave to submit the following article on the subject 
referred to us for our consideration. 

The CHAIR. The report will lie upon the table 
and be printed. 

WAYS AND MEANS. 

Mr. HASBROUCK. As chairman of the committee 
on Ways and Means, I desire to report as follows: 



404 WAYS AND MEANS 

Mr. President, your committee on Ways and Means 
respectfully submit the following report: We find the 
following named members, not heretofore reported, en- 
titled to the mileage set opposite their respective names, 
to-wit : Miles 

S. F. Taylor, Eagle Rock, Bingham County 660 

Robt. Anderson, Eagle Rock, Bingham County.... 642 

Aaron F. Parker, Grangeville, Idaho County 1154 

Hasbrouck, Chairman. 

The CHAIR. Under the rules that report should 
be ordered printed, but I presume there is no desire to 
have it printed. If there is no objection the printing of 
this report will be dispensed with. Are there any other 
reports of standing committees? (None). Reports of 
select committees? (None). 

Mr. MAYHEW. I suppose now the chairman of 
the committee of the Whole would be in order to make 
his report. I don't know what committee it goes under, 
but I always understood the chairman of the committee 
of the Whole could report at any time. 

The CHAIR. If the gentleman will call the atten- 
tion of the chair to any rule that allows the report to 
be made at any time, I would be glad to receive it. 

Mr. SHOUP. As I understand the rules, the chair- 
man of the committee of the Whole may report at any 
time that the convention desires he shall report. 

Mr. MAYHEW. Mr. President, there is no doubt 
about that, when leave is once granted to any chairman 
to make report, his report may be made at any time to 
the incoming session. Of course the convention may 
demand the report forthwith. 

The CHAIR. The chair does not understand it 
that way, and will be obliged to rule otherwise until 
some rule is referred to. Are there any further reports 
of select committees? (None). Final readings? 
(None). That finishes the regular order of business. 
What is the pleasure of the convention? 

Mr. CAVANAH. Mr. Chairman 

Mr. MAYHEW. I would like to ask, Mr. President, 



RESOLUTION TO EXPUNGE 405 

when the report of the committee of the Whole can be 
made? We have gone through the regular routine of 
business and are now ready to go into committee 
of the Whole, Is not the action of the committee of the 
Whole to be taken notice of by this convention? I have 
sent it up and ask leave that it be received with the 
proceedings this morning. It does not make any differ- 
ence to me when it is made, so that I can get it out of 
my hands; I think it is my duty to do so. 

The CHAIR. No question about that. The chair 
ruled the gentleman out of order at that time, as well 
as the gentleman from Elmore with his motion. After 
the regular order of business is finished, the gentleman 
from Elmore is first to rise, and therefore is recognized 
by the chair. The gentleman from Elmore has the 
floor. 

Mr. CAVANAH. I sent my motion up to the sec- 
retary. 

RESOLUTION TO EXPUNGE. 

SECRETARY reads: Mr. President, I move that 
the amendment offered by the member from Ada, Mr. 
Pefley, relating to the Preamble of the Bill of Rights, 
be expunged from the minutes. (Seconded; cries of 
"Question."). 

Mr. PEFLEY. I certainly shall not be convicted 
without a hearing. That preamble was drafted from 
other constitutions. I don't know that there is another 
constitution that has exactly the same words, but take 
two-thirds of the constitutions of nearly any of the 
states of this Union, and you will find those identical 
words in those constitutions, and there is one proposi- 
tion that is almost exactly the same in all, and if there 
is any infidelity, such as the gentleman intimates, in a 
man's offering a substitute for a preamble that con- 
tains words similar to those in the Constitution of the 
United States and many of the states of this Union, then 
I stand convicted, I presume, as an infidel, before this 
august body. But, Mr. President, I supposed that we 



406 REPORT, COMMITTEE OF THE WHOLE 

were here for consultation, to prepare a constitution, 
not at the whim of any one man, but that we might 
put our heads together and draft something that would 
be suitable for the government of this state — not anti- 
republican, for of course we could not expect to be ad- 
mitted if it was radically proposed in some respects. 
But those words as contained in it, are almost exactly 
the same words as contained in several of the constitu- 
tions of the Union; they have been passed upon by 
Congress, admitted as states, and a part of the same 
words exist in the Constitution of the United States, 
and the idea of expunging anything of that kind from 
the minutes appears to me ridiculous, and could only 
emanate from a man who was not in his right 

Mr. AINSLIE. I rise to a point of order. Under 
Rule 56, "Resolutions giving rise to debate shall lie 
over one day before being acted upon, if, upon their 
introduction any member shall give notice of a desire 
to discuss the proposition therein contained.' ' If the 
gentleman from Ada county, Mr. Pefley, desires to dis- 
cuss this question it will have to lay over. 

The CHAIR. The chair sustains the point of order. 
Does the chairman of the committee of the Whole de- 
sire to bring up his report now? If there is no objection 
it will be presented. 

SECRETARY reads: 

"The committee of the Whole have had under consideration 
the report of the committee on Preamble and Bill of Rights, 
report the same back to the convention, and recommend that 
Sections 1, 2, 3, 5, 6, 10, 11, 12, 16, and 18, be adopted. 

"That Section 4 be amended by continuing after "worship" at 
the end of line 11, the following: 

'Bigamy and polygamy are forever prohibited in the state, 
and the Legislative Assembly shall provide by law for the pun- 
ishment of such crimes.' 

"Also by inserting after the word 'denomination' in line 9, 
the words 'or pay tithes.' 

"That Section 7 be amended by inserting in second line after 
the word 'verdict' the words, 'and the Legislature may provide 
that in all cases of misdemeanor five-sixths of the jury may 
render a verdict.' That in lieu of Section 8, the following sub- 
stitute be adopted: 



REPORT, COMMITTEE OF THE WHOLE 407 

'Section 8. No person shall be held to answer for any felony 
or criminal offense of any grade, unless on the presentment or 
indictment of a grand jury, or information of the public prose- 
cutor, after a commitment by magistrate, except in cases of im- 
peachment, in cases cognizable by probate courts or by justices 
of the peace; and in cases arising in the militia when in actual 
service in time of war or public danger. 

"Provided, That a grand jury may be summoned upon 
order of the judge of the district court in the manner provided 
by law. 

"That Section 9 be amended by striking out all after the 
word 'liberty' in the second line. 

"That Section 13 be amended by striking out all after the 
word 'himself in the sixth line, and inserting the following 
words, 'nor be deprived of life, liberty or property without due 
process of law.' 

"That the title to Section 14 be amended by striking out the 
words 'private and' where the word 'private' occurs the second 
time in the title, and that the following be substituted for 
Section 14: 

'Section 14. The necessary use of lands for the construction 
of reservoirs, or storage basins, for the purpose of irrigation, 
or for rights of way for the construction of canals, ditches, 
flumes or pipes, to convey water to the place of use, for any 
useful, beneficial or necessary purpose, or for drainage, or for 
the drainage of mines, or for the working thereof by means of 
roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, 
dumps or other necessary means to their complete development, 
or any use necessary to the complete development of the ma- 
terial resources of the state, or the preservation of the health 
of its inhabitants, is hereby declared to be a public use, and 
subject to the regulation and control of the state. 

'Private property may be taken for a public use, but not 
until a just compensation, to be ascertained in the manner pre- 
scribed by law, shall be paid therefor.' 

"That the following be substituted for Section 15: 

'Section 15. There shall be no imprisonment for debt in this 
state except in cases of fraud.' 

"That Section 17 be stricken out. 

"That Section 19 be amended by striking out the word 'to' 
after the word 'afforded' in line 2, and insert in lieu thereof the 
word 'for.' 

"That Section 20 be amended by striking out all down to the 
word 'no' in the first line, and inserting the words 'and lawful' 
after the word 'free' in the second line. 

"That Section 21 be amended by inserting after the word 



4 08 REPORT, COMMITTEE OF THE WHOLE 

I i ;: i 

'office' in the second line the words 'except in school elections or 
elections creating indebtedness.' 

"That the word 'popular' be stricken out of the title to 
Section 22. 

"And that Section 18 be made Section 17: Section 19, Sec- 
tion 18: Section 20, Section 19: Section 21, Section 20, and Sec- 
tion 22, Section 21. 

"And that the report be adopted as so amended. 

"Also, the committee have had under consideration the report 
of the committee on Militia and Military Affairs and report the 
same back to the convention with the recommendation that it 
be adopted. 

A, E. Mayhew, Chairman." 

The CHAIR. It is moved and seconded that the 
report of the committee of the Whole be adopted. 

Mr. HEYBURN. Is it not proper to receive this 
report instead of adopting it? I move to substitute the 
word "receive" instead of "adopt." 

The CHAIR. The chair will have that word "re- 
ceive." It is moved and seconded that the report of the 
committee of the Whole be now received. (Carried). 

Mr. HEYBURN. I move now that the report of the 
committee lie on the table. (Seconded). 

Mr. HAGAN. That necessarily follows, does it 
not from receiving the report, that it lies on the table 
until ■ 

The CHAIR. It necessarily follows unless some 
motion is made to dispose of it. It requires 
no motion to lie on the table. It is now on the table 
subject to the action of the convention. If the con- 
vention desires to take any action, that business is now 
in order. 

Mr. SHOUP. I move that the report be adopted. 
(Seconded). 

The CHAIR. It is moved and seconded that the re- 
port of the committee of the Whole be now adopted. 
Are you ready for the question? 

Mr. MAYHEW. That motion was just made, and 
the gentleman from Shoshone moved that it be changed 
to "receive." I hope members will not act too hastily in 
the convention. If we adopt that, the question may 



REPORT, COMMITTEE OF THE WHOLE 409 

hereafter arise whether the convention has not adopted 
everything that has been recommended by the commit- 
tee of the Whole, and cut off any amendment that may 
be desired to be offered by the convention. For that 
reason, Mr. Chairman, it then lies upon the table to be 
taken up for consideration in connection with the arti- 
cle upon the Bill of Rights. I hope it will not be taken 
up now. 

Mr. REID. I rise to a point of order. Under Rule 
51 it lies on the table and is to be taken up in the order 
in which the reports are made and voted upon by sec- 
tions, and then as a whole, and is to be printed. 

The CHAIR. The chair called the attention of the 
convention to Rule 49 which is the one that covers this 
question. "In committee of the Whole propositions 
shall be read by the chairman or secretary and con- 
sidered item by item, etc." 

Mr. REID. Now the point I make is this: That is 
to be read section by section as taken up, and any mem- 
ber has a right to call for the ayes and nays, a right 
which was reserved by me in the committee of the 
Whole. 

The CHAIR. There is no question with reference 
to that. 

Mr. REID. But they propose now to adopt this 
article, and the vote would carry the whole thing with it. 

The CHAIR. Under the rule this report must now 
be taken up; that is the proposition, that the amend- 
ments adopted by the committee of the Whole must now 
be taken up. I presume it may be taken up in almost 
any way, either by adopting it as a whole or taking it 
up by sections. 

Mr. HEYBURN. I understand that is only after 
the convention authorizes the order. I made a motion 
to lay it upon the table to dispose of that. 

The CHAIR. The motion was not seconded. 

Mr. MAYHEW. It was seconded. I seconded it. 

The CHAIR. As long as this previous motion was 
made, the chair will now put it, and rule that the gen- 



410 LEAVES OF ABSENCE 

tleman from Custer was out of order. It is moved and 
seconded that the report of the committee of the Whole 
be laid upon the table. Are you ready for the question? 

Mr. SHOUP. I wish to know where in the con- 
stitution is this report then placed. 

The CHAIR. It lies upon the table subject to be 
taken up at any time by order of the convention. The 
motion to lie upon the table operated as a suspension 
of the rule for its immediate consideration. The ques- 
tion is on laying the report of the committee of the 
Whole on the table. (Carried). 

Mr. RE ID. I move that the convention resolve itself 
into committee of the Whole for the purpose of taking 
up the next regular order, the report of the committee 
on Executive Department. (Seconded). 

LEAVES OF ABSENCE. 

Mr. HAGAN. I want to ask leave of absence both 
on account of business and illness of my family. 

The CHAIR. The gentleman from Kootenai re- 
quests leave of absence from the convention. Is there 
any objection? If not, leave is granted by the conven- 
tion. 

Mr. HOWE. I would also ask leave of absence in- 
definitely on account of business and illness of my fam- 
ily. 

The CHAIR. Is there any objection? There is no 
objection and leave is granted. 

Mr. RE ID. My motion is that the convention re- 
solve itself into committee of the Whole for the purpose 
of proceeding with the first regular order of the day, 
the report of the Legislative Department. (Seconded). 

The CHAIR. It is moved and seconded that the 
convention now resolve itself into committee of the 
Whole for the purpose of considering the report of the 
committee on Legislative Department. Are you ready 
for the question? 

Mr. BEATTY. I move the motion be changed by 
inserting the word "executive" instead of "legislative." 



ARTICLE IV., SECTION 1 411 

Mr. REID. The reason I stated that was because it 
was first on the order of the day, and I thought we 
were to take it up in order. 

Mr. MORGAN. As the chairman of the committee 
on Legislative Department I would be glad if the report 
of that committee could be postponed until Monday 
morning, in accordance with this motion, and that the 
committee report on the Executive Department be taken 

up. 

Mr. REID. I will accept the gentleman's amendment 
then. 

The CHAIR. It is moved and seconded that the 
convention go into committee of the Whole on the report 
of the committee on Executive Department. (Carried). 
Will the gentleman from Oneida county, Mr. Standrod, 
take the chair? 

Mr. STANDROD. Mr. President, I would respect- 
fully decline and ask that someone else be selected. 

The CHAIR. I will call Mr. Reid to the chair. 

COMMITTEE OF THE WHOLE IN SESSION. 

Mr. REID in the Chair. 

Section 1 — Article iv. — executive department. 

SECRETARY reads Section 1 of article on Execu- 
tive Department, and it is moved and seconded that the 
same be adopted. 

Mr. McCONNELL. I would like to have an oppor- 
tunity to speak on this section, if it is not too late. 

The CHAIR. Proceed. 

Mr. McCONNELL. It is easy to adopt these pro- 
visions in the constitution, but they have got to be 
adopted by a higher tribunal than ours, that is, when 
they go to the people, and the question will occur to our 
constituents as to what benefits we will derive from 
state government, or what they will cost us. The bene- 
fits can be easily explained, but whether we can explain 
the additional expense of state government, is a ques- 
tion for us to consider, and consider carefully, before 



412 ARTICLE IV., SECTION 1 

we proceed to the hasty adoption of any of these sec- 
tions. 

It occurs to me that we have more offices described 
here than is necessary for a state of our size and pros- 
pective wealth. We have, namely, a governor, lieuten- 
ant governor, secretary of state, auditor, state treasurer, 
attorney general, and superintendent of public instruc- 
tion. I think for a term of years at least we could 
easily dispense with either of these officers, namely, the 
lieutenant governor, state auditor or attorney general. 
I would like to hear further from gentlemen on this 
subject. I am sure that an explanation will be required 
of us when we go home. The state of Oregon has up to 
the present date got along without any lieutenant gov- 
ernor, without any auditor or attorney general, and 
there has certainly been as much business transacted in 
that state as will probably be transacted in this state, 
within the next twenty years at least. 

Mr. AINSLIE. I don't know anything about the 
condition of the state of Oregon, or its resources for the 
support of a state government. These provisions are 
in the constitution of nearly every state of the Union. 
The office of lieutenant governor, while considered as a 
sort of figure-head, is necessary, unless we change the 
whole line of succession in regard to the office of gov- 
ernor when it become vacant by death, removal or im- 
peachment. It would necessitate re-writing the entire 
system of state organization, if we made any inroads in 
cutting down the officers enumerated in this bill. The 
lieutenant governor derives no salary from the state 
treasury, except when he is in actual service as presid- 
ing officer of the senate; it is so provided, and then he 
only draws the same pay that the speaker of the house 
of representatives does, during the time it is in session. 
During the balance of the year he draws no pay at all, 
and he has no vote, except in case of a tie in the sen- 
ate. I think the office is a necessary one, and the com- 
mittee unanimously believed so, or they would not have 
so reported it. 



ARTICLE IV., SECTION 1 413 

A state auditor is one of the most necessary officers 
we can have. How are the accounts of the state to be 
kept unless we have an auditor, so as to have a system 
of checks and balances between him and the state treas- 
urer, protective to both officers? They have found it 
necessary — or the Congress of the United States found it 
necessary, to authorize the legislatures of the territor- 
ies to create such offices, which it did in the case of those 
three, I believe. We have found that the office of terri- 
torial controller, or auditor, as it used to be, is one of 
the wisest positions established in the territorial gov- 
ernment. And as to getting along without an attorney 
general, I think that is impossible; nor can you devolve 
the business of the attorney general upon a district offi- 
cer. That would be a fine thing to see, that the dis- 
trict attorney from some district should act as attorney 
general in some case coming here on appeal, or assume 
his duties in some matter requiring a construction of the 
constitution. Let us make this a proper organization, 
in carrying out the ends of state government. I don't 
see how you can get along without it, and I object to 
any amendment to it. 

Mr. HASBROUCK. I have an amendemnt. 

SECRETARY reads: To amend Section 1 by strik- 
ing out in the second line the word "auditor" and insert- 
ng in lieu thereof the word "controller." 

Mr. AINSLIE. I don't know that that would make 
any difference at all. I believe it is territorial controller 
now; I know the offices are identical. 

The CHAIR. Is it supported? (Seconded). 

Mr. HASBROUCK. So far as I am informed, under 
the present regime the controller of the territory does 
not audit any bills; if that is considered, it is a mis- 
nomer, and I presume the same line of action will be 
taken in the state government. For that reason I wish 
to change it. 

Mr. SWEET. I would like to inquire who will audit 
the bills of the state if the auditor does not? 



414 ARTICLE IV., SECTION 1 

Mr. MAYHEW. I hope the gentleman will answer 
the question ; I want to know. 

Mr. HASBROUCK. I cannot tell, because I do not 
know what the other reports are yet on these questions. 

Mr. AINSLIE. I think if the gentlemen here offer- 
ing amendments to these bills would take the trouble to 
read this bill, they would find all their troubles provided 
for. I think the bills are usually read through for in- 
formation. If they will read it for information, they 
will drop the proposition of making so many amend- 
ments here. 

Mr. GRAY. I hardly see the force of the objection 
to the number of officers we have here. We considered 
that they are necessary. The lieutenant governor has 
been mentioned by the chairman of the committee. We 
have this benefit, that we would not have in the event 
we did not have that office : The likelihood is, if the gov- 
ernor holds his position, that all the duties he will have 
to perform is that of president of the senate; and that 
is the only pay he gets — is for that service, but in the 
event of the governor's death, or absence from his post, 
then there is some sort of positive person to take his 
position ; and we think it is a very important clause in 
it, when it costs the state nothing in the event that does 
not happen, to have the succession of the office provided 
for. We can easily see of how much benefit it might 
be, supposing that we might suddenly lose the governor 
or for some reason he should be disqualified to perform 
his duties. As to the number of officers, it is no more 
than the territory has today — governor, secretary of 
state, controller, treasurer, attorney general and super- 
intendent of schools. The attorney general I must say — 
you must agree with me, I think, who will attend to the 
legal duties of the state, is necessary. Upon whom will 
these devolve? Upon the district attorney, or must 
there be a man got for the occasion? If so, who? If 
one should be taken for the occasion, it would certainly 
cost more, should there be litigation to any extent, than 
it would to have a regular salaried officer upon whom 



ARTICLE IV., SECTION 1 415 

we could depend. I think our history will show, — that 
is, with a good appointment, that there is money saved 
to the territory in having an officer of that kind; 
I think this territory has received benefits from having 
an officer of that kind — a poor officer anyway, but a 
good officer of that kind is certainly one of the most 
important officers devised among the state officers, to 
attend to all the state business, to attend to all the 
prosecutions before the supreme court; and we certainly 
will have to increase our expense accounts for the prose- 
cution of criminals arising from the counties, if the 
district attorney must follow them here and prosecute 
them in the event of appeal; it certainly must be an 
expense to some one, and on this account it would be 
much simpler for them one and all to have a prosecuting 
officer here to attend to it. 

Mr. McCONNELL. I desire to ask for information 
of the chairman of this committee, whether it would be 
possible for the secretary of state to audit these ac- 
counts ? 

Mr. AINSLIE. No sir, I don't think he can. The 
secretary of state will have as much as he can attend 
to, to verify the laws passed by the legislature, to issue 
the certificates and papers signed by the governor, attend 
to his recording and other duties. You might as well 
say that the governor or some of the clerks could attend 
to the duties of the controller's office. We all know very 
well he has had to employ one or two additional clerks 
to attend to his own office. If you want to consolidate 
all these offices, have nothing but a governor and have 
nothing but clerks — but we propose to have a state 
government of some dignity, not for any one man. 
(Cries of "Question"). 

The CHAIR. The question is upon the amendment 
offered by the gentleman to strike out the word "audi- 
tor" and insert the word "controller." (Vote). The 
motion is lost. The question now recurs upon the adopt- 
ion of the section as originally read. (Vote and car- 
ried). 



416 ARTICLE IV., SECTION 3 

Section 2. 

SECRETARY reads Section 2, and it is moved and 
seconded that it be adopted. 

Mr. CLARK. There are two blanks in this section, 
and I move that they be filled by inserting the word 
"one." (Seconded and carried). 

Mr. AINSLIE. I would suggest that the secretary 
be authorized to fill them. 

The CHAIR. Without objection, it will be so ordered 
It is moved and seconded that the section be adopted. 
(Carried). 

Section 3. 

SECRETARY reads Section 3, and it is moved and 
seconded that it be adopted. 

Mr. CLARK. I have an amendment. 

SECRETARY reads: To amend Section 3, in the 
first line by inserting the word "or" after the word 
"governor." In the second line, strike out the words 
"or superintendent of public instruction." In line 4 in- 
sert after the word "auditor" the words "superintend- 
ent of public instruction." 

The CHAIR. The secretary will read the section as 
it would be when amended. (Secretary reads the sec- 
tion with the amendment). 

Mr. MORGAN. I think the word "or" is in the 
proper place. Where there are words occurring in two 
sentences of that kind, the conjunctive should be placed 
before the last term, as it is in this section. I do not 
recollect what the other proposed amendment was. (Sec- 
retary again reads the section with proposed amend- 
ment). Did I understand the gentleman's amendment 
was to strike out the words "superintendent of public 
instruction?" 

The SECRETARY. In the second line, strike out 
the words "or superintendent of public instruction." 

Mr. AINSLIE. As I understand it, it is only to 
place the superintendent of public instruction in the 



ARTICLE IV., SECTION 6 417 

category of the last series of state officers, requiring 
them to be 25 years of age, instead of leaving the super- 
intendent of public instruction to be 30 years of age, 
the same as the governor and others. 

Mr. CLAGGETT. Mr. Chairman, the gentleman 
from Boise has correctly stated it. The first set of offi- 
cers are required to be 30 years of age, and the next 
succeeding set of officers, 25 years of age. We wish 
to take the superintendent of public instruction from 
the first class and transpose him to the second place. 
So far as the office has yet been held in this territory, I 
think the officer has sometimes been under the age of 
30 years. I think my young friend from Alturas, Mr. 
Batten, has already held the same office, and has not yet 
reached the age of 30 years. Men thoroughly competent 
for this office have been found and will be found at the 
age of 25 years. 

The CHAIR. The question is upon the adoption of 
the amendment offered by the gentleman from Ada. 
(Vote). The noes seem to have it. (Division called 
for. Upon rising vote, ayes 29, nays 20). The ayes 
have it, and the motion is adopted. The question now 
recurs upon the adoption of the section as amended. 
(Carried). 

Section 4. 

SECRETARY reads Section 4, and it is moved and 
seconded that it be adopted. Carried. 

Section 5. 

SECRETARY reads Section 5, and it is moved and 
seconded that it be adopted. Carried. 

Section 6. 

SECRETARY reads Section 6, and it is moved and 
seconded that it be adopted. 

Mr. HEYBURN. I have an amendment. 

SECRETARY reads: After the word "of" in the 



418 ARTICLE IV., SECTION 6 

sixth line, add the word "office of justices of the supreme 
or district court." 

Mr. HEYBURN. I would state, Mr. Chairman, 
that there has been no provision made for the filling 
of vacancies, that is, conferring the power directly upon 
the governor to appoint, in the Judiciary bill, and it is 
necessary to have it somewhere, and this is dealing with 
the subject of the vacancies the governor may fill by 
appointment, and it is proper to provide that he may 
fill these offices where a vacancy occurs by death or for 
any other reason. 

Mr. MAYHEW. I would like to inquire of the 
gentleman from Shoshone, if his motion prevails before 
the convention takes up that article on the judiciary, 
it would not make a conflict in the matter. The com- 
mittee on Judiciary have sent up two reports, as to tho 
election of chief justices of the territory, one by elec- 
tion, the other by appointment. 

Mr. HEYBURN. It will not make any conflict in 
either case, because this only provides in case of death 
a vacancy shall occur, while a vacancy might occur if 
he was appointed by the governor as well as if he was 
elected, but this only provides that he fill the vacancy 
in case of one arising. There should be some provision 
made, otherwise in case of death there would be no 
provision. 

Mr. MAYHEW. If it does not conflict with that 
provision I have no objection. 

Mr. MORGAN. I would like to have it read. 

SECRETARY reads Section 6 as proposed to be 
amended. 

Mr. GRAY. It says in the fore part of the sixth 
line, "If during a recess of the senate a vacancy occur 
in any office, the governor shall appoint some fit per- 
son to discharge the duties thereof until the next meet- 
ing of the senate, when he shall nominate some person 
to fill such office." It occurs to me as if that might 
conflict with the Judiciary bill. 

Mr. HEYBURN. I would suggest, Mr. Chairman, 



ARTICLE IV., SECTION 6 419 

that would be true, if we knew that the convention 
would adopt the second report of the Judiciary com- 
mittee, but we do not know it. It will not conflict with 
it in any event; it may constitute an additional clause. 
I am not certain as to that sentence or provision, or as 
to what one. 

Mr. MORGAN. It occurs to me that if any of these 
sections should be found to conflict with each other, 
when the committee on revision comes to examine them, 
they can recommend to the house a change. I want to 
suggest one matter to the mover of the amendment. It 
seems to me the language is not proper — putting the 
amendment in the language it is. I would suggest "of- 
fice of a justice of the supreme or district court," in- 
stead of "office of justices of the supreme or district 
court." 

Mr. HEYBURN. I accept the amendment. 

The CHAIR. The question is upon the adoption 
of the amendment of the gentleman from Shoshone. 
(Vote and carried). 

The CHAIR. The question now recurs upon the 
adoption of the section as amended. 

Mr. WHITTON. Should there not be some pro- 
vision for the governor to appoint county commissioners 
in case of vacancy? The way the law is now, the county 
commissioners appoint their own members in case of 
vacancy, but it seems to me that should be taken out 
of the hands of the commissioners themselves, to be 
appointed by the governor, in each county where a 
vacancy should occur. I only speak of that and sug- 
gest it to the convention. It seems to me that would be 
better than to have the other two appoint one. 

The CHAIR. The chair would suggest that under 

the provision of the fourth line, if no other provision 

is made by law, could not the governor appoint to fill 
any vacancy? 

Mr. MAYHEW. I desire to offer an amendment. 
SECRETARY reads: In the fourth line, after the 



420 ARTICLE IV., SECTION 6 

word "any," insert the words "state or district." (Sec- 
onded). 

Mr. MAYHEW. You will observe, Mr. Chairman, 
that if this should be adopted as it is now, the gov- 
ernor might appoint to any offices that might become 
vacant in the state, such as constable, sheriff, etc., and 
I want to confine this strictly to the state and district 
officers, and it will then read, if this amendment is 
adopted, "If during a recess of the senate a vacancy 
occurs in any state or district office, the governor shall 
appoint," etc. That denies the governor the right to 
appoint sheriffs, justices of the peace, or anything of 
that kind. 

Mr. AINSLIE. I desire to say in my behalf individ- 
ually in this matter, that I was not present when this 
bill was completed by the committee on executive de- 
partment, and it was handed to me by the secretary of 
the committee as speaking the views of the committee. 
I coincide with the views of Judge Mayhew on that 
matter. It would make it possible for the governor to 
nominate a constable, sheriff or justice of the peace, 
and I think "any state or district" should be inserted 
there. Those are the officers, and none others. The 
legislature provides for the manner of filling vacancies 
in county offices; that is a matter that the executive of 
the state government has nothing to do with. I am 
willing to accept the amendment. 

The CHAIR. The question recurs on the adoption 
of the amendment by inserting the words "state or 
district" after the word "any" in line 4. (Carried, and 
the section is adopted as amended). 

Mr. BEATTY. I would like to ask, in view of the 
last amendment, what kind of district officers can be 
included? 

Mr. MAYHEW. District attorney, and such offi- 
cers as that. 

Mr. BEATTY. The question is whether that would 
include mining districts, and such as counties. 



ARTICLE IV., SECTION 14 421 

Mr. MAYHEW. I do not suppose precinct officers 
or justices of the peace. 

Sections 7, 8, 9, 10 and 11. 

SECRETARY reads Sections 7, 8, 9, 10 and 11, and 
the adoption of each is separately moved, seconded and 
carried, without debate or amendment. 

Section 12. 

SECRETARY reads Section 12, and it is moved 
and seconded that it be adopted. 

Mr. HEYBURN. I desire to offer an amendment. 

SECRETARY reads: Amend Section 12 by insert- 
ing before the first word in line 2 the word "treason." 

Mr. AINSLIE. We have no objections to that 
amendment. 

Mr. MORGAN. It occurs to me that if the words 
"treason" and "felony" are introduced there, the word 
"other" should be inserted after the word "or," as both 
crimes named are infamous crimes. I move to amend 
by inserting the word "other" after the word "or" in 
the second line. (Seconded). 

The CHAIR. The question is upon the adoption of 
the amendment of the gentleman from Bingham, that 
the word "other" be inserted after the word "or" in 
the second line. (Carried). The question now recurs 
upon the adoption of the section as amended by the 
amendment of the gentleman from Bingham and the 
amendment accepted by the chairman of the committee. 
(Carried, and the section is adopted). 

Section 13. 

SECRETARY reads Section 13, and it is moved and 
seconded that the same be adopted. Carried. 

Section 14. 

SECRETARY reads Section 14, and it is moved and 
seconded that it be adopted. 

Mr. CLAGGETT. I suggest that the same amend- 



422 ARTICLE IV., SECTION 17 

ment be made in this section as in the previous section. 

Mr. HEYBURN. I have sent up an amendment of 
that kind. 

SECRETARY reads: Amend Section 14 by insert- 
ing after the word "of" in the second line the word 
"treason," and after the word "or" first occurring in 
said line, the word "other." (Seconded). 

Mr. AINSLIE. The committee accepts the amend- 
ment. 

The CHAIR. The question now recurs on the 
adoption of the section with the amendment as accepted 
by the committee. (Carried). 

Section 15. 

SECRETARY reads Section 15, and it is moved and 
seconded that the same be adopted. 

Mr. BEATTY. Might I be allowed to ask the chair- 
man of this committee whether any provision is made 
in case either the governor, lieutenant governor or 
speakers of the houses are incompetent to fill these 
offices? 

Mr. AINSLIE. So far as the committee is con- 
cerned, we never found anything, any provision of that 
kind in any constitution we examined. You can always 
elect a new president of the senate pro tempore, or a 
new speaker of the house, if either one of them dies or 
becomes disqualified. The legislature can provide for 
a successor to the office in either house, who would 
naturally succeed to the office made vacant. 

The CHAIR. What will the committee do with the 
section? It is moved and seconded that the section as 
read be adopted. (Carried). 

Section 16. 

SECRETARY reads Section 16, and it is moved and 
seconded that the same be adopted. (Carried). 

Section 17. 

SECRETARY reads Section 17, and it is moved and 
seconded that the same be adopted. (Carried). 



article iv., section 19 423 

Section 18. 

SECRETARY reads Section 18, and it is moved and 
seconded that it be adopted. (Carried). 

Section 19. 

SECRETARY reads Section 19. 

Mr. AINSLIE. Mr. Chairman, it appears to me 
that in line 16 the word "tenure" should be always 
"during the term." 

Mr. MORGAN. That depends upon what the com- 
mittee means. "Tenure" means the holding of office, 
and the word "term" means the time for which he was 
elected or appointed. 

Mr. POE. I would ask the further consideration 
of this section by postponing it until we take up the 
consideration of the report of the committee on Salar- 
ies of public officers; they necessarily go together. The 
report of that committee will have to be done away 
with and no part included as an article in the constitu- 
tion, or else this section will have to be expunged from 
the report of the executive committee. And we can act 
upon it more intelligently when we take up the matter 
of salaries. Of course it would be possible to authorize 
the blanks to be filled, but they cannot be filled until 
after we consider the report of the committee on Sal- 
aries of public officers, and I therefore move that the 
further consideration of this section be postponed until 
the matter of the consideration of the report of the 
committee on Salaries is taken up. 

Mr. BEATTY. I move an amendment to this mo- 
tion. 

The CHAIR. It has not been seconded. 

Mr. AINSLIE. I second the motion. 

Mr. BEATTY. Then I move the previous motion, 
and that the committee on Revision be instructed to fill 
up these blanks after this committee's report. 

Mr. GRAY. I think that would be perfectly proper, 
that after the passage of the salary bill, that these 
blanks may be filled by the committee on Revision; it 



424 ARTICLE IV., SECTION 19 

would be a portion of their business, in accordance 
with the report of that committee; and therefore let's 
get through with this bill. 

The CHAIR. Does the gentleman from Nez Perce 
accept the amendment? 

Mr. POE. There has been no second to my motion, 
and therefore there is nothing to accept. 

The CHAIR. I understood that the motion was 
seconded. The motion was made by the gentleman that 
the consideration of this section be postponed until the 
report of the committee on Salaries was taken up. That 
was seconded by the gentleman from Boise. The gen- 
tleman from Alturas moves as an amendment or sub- 
stitute to this motion, that the consideration be pro- 
ceeded with, except that the blanks be left to be filled 
after the convention, or committee of the Whole under 
the convention, has passed upon the report of the com- 
mittee on Salaries. The question recurs first upon the 
amendment. 

Mr. BEATTY. By the committee on Revision. 

The CHAIR. By the committee on Revision, as shall 
have been determined by the convention when they 
shall have got the report of the committee on Salaries. 
The question is first, on the amendment that the blanks 
be left to be filled by the committee on Revision, after 
we shall have acted upon the report of the committee 
on Salaries. (Vote and carried). 

The CHAIR. The question now recurs upon the 
adoption of the section, otherwise than the filling of 
these blanks; what will you do with the section? 

Mr. McCONNELL. I would like to offer an amend- 
ment. 

Mr. SHOUP. I would like to inquire if the report 
of the committee on Salaries does not provide that the 
lieutenant governor shall be a salaried office? 

Mr. POE. No sir, it makes no provision of that 
kind, but that he shall only receive such pay as the 
speaker of the house shall receive. 

Mr. CLAGGETT. There is one provision here 



ARTICLE IV., SECTION 19 42 5 

that should be stricken out altogether, or it should be 
changed, I think, To bring the matter before the com- 
mittee, I move to strike out the word "tenure" in line 
16, and insert the word "term" in Section 19. (Sec- 
onded). 

Mr. CLAGGETT. The way the matter reads then, 
"No person mentioned in this section shall be eligible 
to hold any other public office except regent of the state 
university during his term of office." That is, during 
the term for which he was elected. It is limited to the 
governor of the state, the state auditor, treasurer, at- 
torney general and superintendent of public instruction. 
I make the motion for the purpose of preventing occu- 
pants of these high offices in the state government, 
from accepting one position by an election before the 
people, and then during their terms of office intriguing 
to secure other offices. It is one of the most fruitful 
causes of abuse that has been known on this Pacific 
coast. I approve the limiting of it myself to the gov- 
ernor, but I make the motion for the purpose of bring- 
ing it before the convention. (Seconded). 

Mr. McCONNELL. I Have an amendment. 

SECRETARY reads: Amend line 16 of Section 19 
by inserting after the word "university" the words "or 
member of the state board of land commissioners." 
(Seconded). 

Mr. AINSLIE. I would ask the gentleman from 
Latah county, if there is not some provision in the bill 
on education that creates these offices, that provides *a 
state board of land commissioners? 

Mr. McCONNELL. That is the object of making 
that amendment. In our report of the committee on 
Schools and Public Lands, we provide for a state board 
of land commissioners, for the sale of public lands, 
school and university lands, and it would be necessary, 
I think, to have that in there. 

Mr. AINSLIE. On behalf of the committee, we 
make no objection to the amendment. 

The CHAIR. Do you accept the amendment pro- 



42 6 ARTICLE IV., SECTION 19 

posed by the gentleman from Shoshone also? 

Mr. AINSLIE. No sir, I certainly do not want to 
accept that. That would leave a doubtful construction, 
as to whether the term of office would be for the time 
he was elected; better leave it as the committee has re- 
ported it, as tenure of office. It may be that some of 
these gentlemen may want to run for the United States 
senate, and that would shut them out, if you make the 
amendment proposed by the gentleman from Shoshone. 
I do not intend to intimate that any of them would be 
candidates for that office, although I don't think I have 
heard one of them refuse it. But there may be in- 
stances where the offices of state treasurer, auditor and 
superintendent of public instruction — some of these 
offices are filled frequently by lawyers; now there may 
be a vacancy in the office of district attorney, or in 
some district office, and sometimes the salaries of those 
offices are better than that of state superintendent of 
public instruction or state treasurer, and a man might 
want to resign his state office and become a candidate 
for the vacant county office, and if you change the 
word "tenure" to "term" it would deprive him from 
being a candidate for the minor office; that would be 
one objection to it. 

Mr. MORGAN. There is one other reason; as the 
section reads, if you change the word, it would prevent 
any in those positions from accepting any federal office 
also. 

Mr. LEWIS. Could not there be other officers pro- 
vided by the legislature, I mean, ex-officio commissioner 
of public lands, in connection with the office of emigra- 
tion commissioner? 

Mr. CLAGGETT. By leave of my second, whoever 
it was, I would like to withdraw and re-present the 
amendment which I offered, so as to cover my own ideas 
about it. 

The CHAIR. Is there any objection to his with- 
drawing it? 

(No objection is made). 



ARTICLE IV., SECTION 19 427 

Mr. CLAGGETT. I move to amend the section, 
withdrawing the other amendment, by adding after the 
word "office" in line 16 the following: "nor the governor 
during the term for which he was elected." That then 
will prevent any one of these officers mentioned in the 
section from duplicating an office during the time that 
he holds his office, and will make the governor ineligible 
to any other office in the state during the term for which 
he is elected. 

The CHAIR. Now read the sentence as amended. 

SECRETARY reads: No officer mentioned in this 
section shall be eligible to or hold any other public of- 
fice, except regent of the state university or member of 
the state board of land commissioners, during his tenure 
of office, nor the governor during the term for which 
he was elected. 

Mr. CLAGGETT. I offer the amendment, Mr. Chair- 
man. 

The CHAIR. The chair would like to ask the gen- 
tleman from Shoshone if he withdraws "during the 
term" instead of "tenure." 

Mr. CLAGGETT. I did state that; I got leave of 
the convention to withdraw that. The idea of present- 
ing that amendment is this: The governor possesses a 
large amount — or will possess, in one form or another, 
a considerable degree of patronage. On the Pacific 
coast it has been in years past a fruitful source of 
trouble, that the governor has used the patronage — all 
the patronage of his office and the influence of his po- 
sition, for the purpose of lifting himself into some 
other office, generally that of senator of the United 
States; and the governor's chair is frequently made a 
place from which political intrigue extends out into all 
portions of the territory, and improperly affects the 
freedom of legislative action in this regard. I think 
any man who receives from a vote of the people of the 
state electing him the office of governor, should be con- 
tented with it during the term for which he was elected, 



42 8 ARTICLE IV., SECTION 19 

and not during that term aspire to any other position 
of a higher nature. 

Mr. MAYHEW. I would like to ask the gentleman 
a question: If the election of governor in this state 
would then not be interfered with very materially, as 
to getting a good and responsible man to run for gov- 
ernor; you have so many candidates for United States 
senator — there are so many in the state, you will never 
get a governor. (Laughter). But how can he accom- 
plish his wish if the balance of the people don't think 
it is right? It makes no difference about patronage. 
I would just as soon see a governor go to the United 
States senate as anybody else; but I think if you are 
going to cut off the governor from aspiring to the sen- 
ate of the United States, we shall never be able to get 
a good governor in this state. 

Mr. McCONNELL. I would like to ask the gentle- 
man from Shoshone a question. Is it not a fact that 
the United States senate judges as to the eligibility of 
their own members? Would any action we take here pre- 
vent them from giving a seat on the floor to any person 
who was properly elected from this state? 

Mr. CLAGGETT. So far as that matter is con- 
cerned, the question of eligibility when you go to Wash- 
ington is to be determined by the Constitution of the 
United States, I presume. But one thing is certain, in 
case this amendment were adopted, it would prevent the 
legislature from sending a governor there. The question 
of his eligibility never would arise in the senate, be- 
cause he never would get to the senate. Now I want 
to state one thing more about this matter. In Cali- 
fornia at an early date, Mr. President, this matter was 
a great public abuse. The legislature elected the gov- 
ernor of the state of California simply, as was said 
and believed at the time, according to agreement, and 
the trouble about it was that his election to the position 
of United States senator was by reason of the patron- 
age of his office. So far as the suggestion that has 
been made here by my friend from Shoshone, that you 



ARTICLE IV., SECTION 19 42 9 

would have no governors in case you shut out senatorial 
aspirants, I don't know how many senatorial aspirants 
there would be in the state — I presume the usual num- 
ber in all new states — but so far as this is concerned I 
don't think there will be any trouble whatever in get- 
ting all the material you want for governor, who would 
not want to go to the United States senate, or who could 
not go if he wanted to. 

Mr. BEATTY. I regret the gentleman from Sho- 
shone withdraws the other amendment. I am heartily 
in accord with the amendment as now proposed, but 
go further. I think when the people elect a man to any 
office he should undertake to fill that office during the 
term for which he was elected, and not when he gets 
into office merely use it for something else, and hence 
I regret the proposition has been changed at all; let it 
apply to all the offices. We do not want to send a man 
up here as attorney general and as soon as he gets here 
see him go to work for some place else and compel us 
1 to look around for another attorney general; and so it 
applies to all offices. I think when a man asks to be 
elected to any office he should take it with the under- 
standing that he will fill it until the end of the term. 
I am in favor of this motion, as I would be in favor 
of the other, if the gentleman from Shoshone had not 
withdrawn it. 

Mr. STANDROD. I desire to ask the chairman of 
the committee on the Judiciary Department if this 
same provision is not had in their report, applicable to 
the justices of the supreme court? 

Mr. HEYBURN. It is. 

Mr, CLAGGETT. Yes, that is a fact. 

The CHAIR. The question recurs upon the adopt- 
ion of the amendment to the section. The amendment 
proposed by the gentleman from Latah has been ac- 
cepted by the chairman of the committee, to insert 
the words "or member of the state board of land com- 
missioners." The amendment proposed, to strike out 
the word "tenure" and insert "term" has been with- 



430 ARTICLE IV., SECTION 19 

drawn. The question is now upon the adoption of the 
amendment proposed by the gentleman from Shoshone, 
to insert the words "nor the governor during the term 
for which he was elected." As many as are in favor 

Mr. HEYBURN. Before that is put, in view of the 
question that was asked me, the object of inserting that 
in the Judiciary bill there was to remove from politics 
and political ambition the supreme bench. It does not 
apply to the district judges, only the members of the 
supreme court, and I hope that this amendment will not 
prevail, because it is making an exception of the gov- 
ernor, and his office is a more valuable one in a pecun- 
iary sense than some other state offices, and if it is ap- 
plied to one, it should be applied more generally. 

Mr. McCONNELL. I hope this motion will not pre- 
vail, because I have heard this question discussed so 
thoroughly and seen its relief tried. The state of Ore- 
gon has a provision similar, but when several years ago 
Col. Tom Cornelius, whom you may know, was nomin- 
ated by the republican caucus of his state for the office 
of United States senator, he felt as though under his 
oath of office he could not accept it. He refused posi- 
tively, and they nominated another individual who was 
sent to the United States senate. In recent years, with- 
in the memory of all of you who are familiar with our 
political history in the Oregon legislature, the question 
was raised in the case of the Hon. Sol Hirsch, who was 
then a member of the state senate, and they balloted in 
their senate chamber for Mr. Hirsch, to assure that 
election. Now it was held by all the attorneys there, 
that while that provision was in the constitution, yet 
there was nothing to prevent the election of Mr. Hirsch 
and his getting his seat. I believe the same state of 
affairs may arise in this state if we adopt this provision, 
and it will only be simply a block in the way. 

Mr. SWEET. That word "tenure" it seems to me is 
rather loose in construction, and I am sorry to see the 
word "term" withdrawn. According to this the secre- 
tary of state, state auditor, state treasurer or attorney 



ARTICLE IV., SECTION 19 431 

general, may accept these appointments, serve a couple 
of weeks, and then, if they see anything better, drop 
the offices. I would like to see that word "term" put in. 

Mr. AINSLIE. As a legal proposition I think the 
position taken by the gentleman from Latah is correct. 
The qualifications of United States senators and mem- 
bers of Congress are prescribed by the constitution of 
the United States, and the state legislature cannot pre- 
scribe any additional qualifications whatever. I think it 
would be a nullity to put it in the constitution of a 
state, prescribing that the governor should not be elect- 
ed to any office, as senator or member of Congress, or 
any other office he chooses to run for. As long as a 
man possesses all the legal qualifications for any office 
under the government of the United States as provided 
by the constitution of the United States, he is eligible 
to that office, notwithstanding any disabilities which may 
be placed upon him by the state constitution. We can- 
not amend the constitution of the United States, and I 
am willing any man should run for any office he wants 
to, whether governor or justice of the peace. Cleveland 
was elected president of the United States while govern- 
or of the state of New York, and while governor of the 
state of New York was nominated by a national con- 
vention of the United States, but under the proposed 
provision of the constitution of Idaho he would have 
been deprived of becoming a candidate for such office. 

Mr. CLAGGETT. The gentleman from Boise is 
mistaken when he says the constitution prescribes the 
qualifications of a United States senator. It certainly 
does not. It contains the prohibition that none but a 
citizen of the United States and who shall be thirty 
years of age, shall be eligible, but leaves it to the state 
to prescribe as to who shall have the qualifications to 
?-o there; except it is a prohibition on the states against 
sending* a man there who is not a citizen of the United 
States or who is under thirty years of age, and that is 
all there is of it. The suggestion made by my friend 
from Latah that in Oregon the attorneys of that state 



432 ARTICLE IV., SECTION 19 

held, notwithstanding their constitution, that the legis- 
lature could go on and send a man there, if that is cor- 
rect, it is certainly a remarkable kind of attorneys out 
there in Oregon, when they held it was competent for 
the legislature of the state to set aside the constitution 
of the state or any constitutional provision of the state. 
But, as I said before, the eligibility of members is not 
determined by the constitution of the state, but there is 
a provision against sending anybody there except some 
one who will answer the requirements that he shall be 
a citizen and thirty years of age. I think that answers 
the question made. Now I have limited the matter 
here to the governor by this motion. The motion, as 
has been suggested, may be amended, so as to cover the 
idea I had originally, to prevent this matter of skirm- 
ishing around between officers. 1 am thoroughly in 
sympathy with the idea that an officer elected to office 
shall be content with that office during the term for 
which he was elected, and as suggested by the gentle- 
man from Bingham, it is a grave abuse for a man to 
receive an office, hold on to it for a month or six weeks, 
and then go skirmishing around until he gets a better 
ore and resigns. It will tend to perpetuate what may be 
called the official class of the state, and it is a class 
which should not be encouraged. 

Mr. McCONNELL. In defense of the legal pro- 
vision of the state of Oregon, I wish to say that the 
United States senate permitted their contention by 
seating the Hon. J. H. Mitchell, who when first elected 
was a member of the state senate. 

Mr. CLAGGETT. That may be; the United States 
senate would not kick about it, if the state did not kick 
against the violation of its own constitution. 

The CHAIR. The question is upon the adoption of 
the amendment of the gentleman from Shoshone, to in- 
sert after the word "office" "nor the governor during 
the term for which he was elected." (Vote.) The chair 
is in doubt. (A rising vote shows 21 ayes, 32 noes.) 
The motion is lost. 



ARTICLE IV., SECTION 19 433 

Mr. BEATTY. I now renew the motion made first 
by the member from Shoshone, that the word "term" be 
put in place of "tenure." 

(Seconded. Cries of "Question.") 

Mr. AINSLIE. That has been decided by the last 
vote, I think. I don't see any use of renewing those 
amendments. The sense of the house has already been 
taken a little while ago, unless it is simply to delay the 
proceedings of the convention. 

Mr. BEATTY. I did not consider this last vote de- 
cided this question. Many members may not have voted 
for this, because it was applicable to only one officer, 
whereas many members will vote for it if it is made 
applicable to all, and that was the view I took, in the 
event that it was a proper motion. 

Mr. MORGAN. I rise to a point of order. The pre- 
cise question was decided in the last vote. You must 
exclude the governor from the amendment, or else the 
question has been decided. We will be taking the vote 
right over again. We have just decided that the govern- 
or may be elected to some other office. 

The CHAIR. The chair has to rule, and he has no 
power to construe the meaning of words. The point of 
order is not well taken. 

(Cries of "Question.") 

The CHAIR. The question is upon the adoption of 
the amendment proposed by the gentleman from Alturas, 
to strike out the word "tenure" and insert the word 
"term." (Vote.) The chair is in doubt. (A rising vote 
shows 27 ayes and 24 nays.) The motion is adopted. 
The question now recurs upon the adoption of this 
section as amended. (The question is put and the sec- 
tion declared adopted.) 

The CHAIR. It is now in order to move that the 
committee rise and report back to the house, or that the 
report be laid aside for the amendments to be inserted, 
and that we proceed with the order of the day. What 
is your pleasure? 

Mr. BEATTY. I move that the committee proceed 



43 4 ARTICLE X., SECTION 1 

to the consideration of the next order of business, which 
is probably this report of the committee on Seat of 
Government. 

Mr. GRAY. Should not we now adopt this bill here? 

The CHAIR. The chair would suggest to the gen- 
tleman from Alturas, covering the inquiry of the gen- 
tleman from Ada, that the report be laid aside for the 
present and that we proceed. 

Mr. MAYHEW. The question the mover means is, 
should not the committee now adopt this article as a 
vhole, as amended? 

The CHAIR. That is the motion of the gentleman 
from Alturas, that the whole of this report, which has 
been adopted, be laid aside now for the present, and be 
reported back to the convention, with the recommenda- 
tion that it be adopted in the convention. Do you mean 
adopted as a whole? 

Mr. GRAY. As a whole, now by the committee. 

The CHAIR. I think your motion takes precedence 
of the other. Have you a second? (Motion is seconded.) 

The CHAIR. The motion is that the committee 
adopt the report as a whole, as it has been read and 
adopted by sections, as amended. (Carried.) 

The CHAIR. The question is now upon the motion 
of the gentleman from Alturas, that the report as adopt- 
ed be laid aside for the present and reported to the 
convention when the committee rises, and that the 
committee now proceed with the next order of business, 
the report of the committee on Seat of Government. 
(Carried.) 

Article 10 — public institutions. 

Consideration of Bill No. 6. (Being report of com- 
mittee on Seat of Government, Public Institutions, 
Buildings and Grounds). 

Section 1. 

SECRETARY reads section one, and it is moved 
and seconded that the same be adopted. (Carried.) 



article x., section 2 435 

Section 2. 

SECRETARY reads section two. 

Mr. MAYHEW. I move to amend section 2, by 
striking- out the word "twenty" in line two, and insert- 
ing the word "ten." (Seconded.) That limits the 
legislature from interfering with the seat of govern- 
ment for ten years. Ten years in the growth of this 
territory will be a great deal. We really cannot tell 
where the center of the population of the state will be at 
the end of ten years, and I think it would be better to 
limit the legislature for ten years from interfering with 
the seat of government. It is not necessary to say it 
shall not interfere with it for ten years, a dozen or fifty; 
it can remain there forever, so far as that is concerned, 
but this putting it at twenty is beyond the necessary 
limit, I think. 

(Cries of "Question,") 

Mr. GRAY. Why the committee put this in, it was 
deemed advisable that as considering the expense that 
had been incurred in public buildings, that it would 
probably be better for that term of years, that it would 
not be for the interest of the territory to incur further 
expense during that time, that the territory or the 
state might not be able so to do, and to keep the ques- 
tion from the legislature, and those who might, in spite 
or malice, not having the interest of the state at heart, 
keep this matter continually before the legislature, and 
thereby affect more or less the legislature of the state. 
They viewed at the same time that twenty years is not 
very long for incurring the expense we have in a new 
state, in the financial condition we are now in; and it 
was the unanimous view of the committee, as I under- 
stand it, that such should be the case, — to leave it where 
it is for twenty years, and that then it may be submitted 
by the legislature to the people. 

Mr. MAYHEW. I cannot help what this territory 
has gone to work and done heretofore in relation to 
building a capitol buiding. I say that this is the only 



436 ARTICLE X., SECTION 2 

territory perhaps among all the territories that has 
assumed to do anything of that kind, so far as my 
knowledge is concerned, and I did not believe that we 
should deprive the people of the state in the future for 
a greater length of time than ten years from saying as 
to where the capital should be. The territorial legisla- 
ture, when they voted that we might expend $100,000 
for the erection of public buildings, 1 had no right so to 
do, in my opinion, and create that indebtedness against 
the territory and the people. Because they have done 
that, which in my opinion, — I am only speaking now of 
my own individual ideas of this matter, — if they 
assumed to do this upon their own responsibility, they 
had no legal right to do it, they had no political right to 
do it, yet they have done it and the people of the terri- 
tory have acquiesed in it, and because they have incurred 
this indebtedness in the erection of a capitol for this 
territory, having no legal authority in my opinion to 
do it further than assuming to do it, — it should not de- 
prive the people in the future, ten years from now, 
through their legislature from saying that the capital 
should be removed. Mr. Chairman, it has generally 
been the case in all these territories that the United 
States government and the Congress of the United 
States has always donated land and money for the pur- 

• 

pose of erecting public buildings in the state. This 
territory has gone on and done it, and could not pos- 
sibly in the future, when they become a state, ask the 
government to refund the money that the territory has 
expended in erecting a capitol building. Congress 
would say; you have done so; it is your own business; 
you have built up your own state capitol, and you must 
take the consequences. I don't think it is any argument, 
because we have spent this money in a territorial matter 
that the people of the state should be deprived ten years 
hence from saying where the capital should be. 

Mr. CLARK. The changes of the next ten years, 



i — Referring to act of 1885, Terr. Sess. Laws p. 62. 



ARTICLE X., SECTION 2 437 

or twenty years, it is impossible to perceive, and yet it 
is not wise that we should foster a spirit of change as 
regards the future of a great state. The city of Boise 
has no prior right upon the capital or upon any other 
privilege from the citizens of this state. Yet the citi- 
zens of this city have a right to a cessation from con- 
tention, so far as can possibly be provided for. If ten 
years are fixed, it will not be six years before the con- 
tention will begin, before plans will be made and entered 
upon, and the expense of money entered upon, to effect 
the result. It seems to me the limit of twenty years is 
sufficient. By that time the other public institutions of 
the state will be settled; the geographical distribution 
of these institutions, as may be required, will be settled 
upon, and the people can far more intelligently deter- 
mine this question at the end of twenty years than they 
can at the end of ten. 

Mr. HARRIS. Mr. Chairman, I have an amendment. 

SECRETARY reads: To amend section 2 by insert- 
ing after the word "be" in the first line the word "per- 
manently," and strike out all after the word "city" in 
line 2. It will then read, "The seat of government of 
the state of Idaho shall be permanently located at Boise 
City." (Seconded.) 

(Cries of "Question.") 

The CHAIR. The question is upon the amendment 
offered by the gentleman from Washington. (Pefley, 
"Aye", balance of vote, "no.") The noes have it. The 
question now recurs upon the amendment of the gen- 
tleman from Alturas to strike out the word "twenty" 
and insert the word "ten." 

Mr. MAYHEW. I do not happen to be from Alturas. 
(Laughter.) 

The CHAIR. I beg the gentleman's pardon. I 
thought the amendment was oifered by the gentleman 
from Alturas; it is Mr. Mayhew. (Vote.) The chair 
is in doubt. (Rising vote shows 28 ayes and 23 nays.) 
The ayes have it and the amendment is adopted. The 
question now recurs upon the adoption of the section 



438 ARTICLE X., SECTION 4 

as amended. (Vote.) the chair is in doubt. (Rising 
vote shows 34 ayes, 14 noes.) The ayes have it and the 
section is adopted as amended. 

Section 3. 

SECRETARY reads Section 3, and it is moved and 
seconded that it be adopted. (Carried.) 

Section 4. 

SECRETARY reads Section 4, and it is moved and 
seconded that it be adopted. 

Mr. CLAGGETT. What are we going to do with the 
capitol, that is provided for in this section? I would 
suggest that the capitol building, and all other public 
buildings, the property of the territory, shall become the 
property of the state. 

Mr. MORGAN. I think the penitentiary belongs to 
the United States; I don't know how we can do it. 

Mr. GRAY. Mr. Chairman, it will be turned over, 
we can do it; it was put there upon condition of being 
turned over. 

Mr. MORGAN. There should certainly be some 
amendment to this. We have nothing to do with the 
penitentiary at Boise. 

Mr. GRAY. I can't see how it would do any harm. 

Mr. MORGAN. We cannot give away the property 
of the United States. 

Mr. GRAY. If it is given to us, it will become the 
property of the state. 

Mr. AINSLIE. I would suggest that the state can 
rent a piece of property and use it for such purposes 
and continue it as an institution of the state, and still 
not own the realty. There is nothing which would pre- 
vent in that language. 

Mr. GRAY. It would be under the management of 
the state. 

Mr. CLAGGETT. I offer this amendment: Strike 
out all down to the word "shall" in the second line, and 



ARTICLE X., SECTION 4 439 

insert the words "all property and institutions of the 
territory." (Seconded and carried.) 

The CHAIR. The question now recurs upon the 
adoption of the section as amended. 

Mr. AINSLIE. Let's have it read as amended. 

SECRETARY reads: All property and institutions 
of the territory shall upon the adoption of this constitu- 
tion become the institutions of the state of Ideho, under 
such laws and regulations as the legislative assembly 
shall provide. 

Mr. CLAGGETT. I move an additional amendment, 
to insert after the word "become," in the third line the 
words "property and," so that it will read "All property 
and institutions of the territory shall upon the adoption 
of this constitution become the property and institutions 
of the state of Idaho, under such regulations as the legis- 
lative assembly shall provide." (Seconded and carried). 

The CHAIR. The question is now upon the first 
amendment proposed by the gentleman from Shoshone. 
(Vote). The amendment is adopted. 

The CHAIR. The question now recurs upon the 
adoption of the section as amended. 

SECRETARY reads section as amended: All prop- 
erty and institutions of the territory shall upon the adop- 
tion of this constitution become the property and insti- 
tutions of the state of Idaho, under such laws and regu- 
lations as the legislative assembly shall provide. 

Mr. CLAGGETT. I further move to amend by 
striking out all after the word "Idaho" in the third line, 
making the transfer by the constitution complete, and 
not requiring the legislature to make the transfer from 
the territory to the state. (Seconded). 

The CHAIR. The question is now upon the third 
amendment offered by the gentleman from Shoshone, 
to strike out all after the word "Idaho" in the third 
line, which embraces the words "under such laws and 
regulations as the legislative assembly shall provide." 
(The amendment is seconded and carried). 

The CHAIR. The question now recurs upon the 



440 ARTICLE X., SECTION 5 

adoption of the section as amended; the secretary will 
read it as amended. 

SECRETARY reads: All property and institutions 
of the territory shall, upon the adoption of this consti- 
tion, become the property and institutions of the state 
of Idaho. (Carried.) The section is adopted as amended. 

Section 5 — (Afterward Stricken Out). 

SECRETARY reads Section 5, and it is moved and 
seconded that it be adopted. 

Mr. MORGAN. Mr. Chairman, if that amendment 
is adopted, it would not make any difference how much 
land Congress should give the territory of Idaho for 
university purposes; it would all belong to this univer- 
sity at Moscow, as I understand it; but I think it is 
making too sweeping an arrangement. I think the 
lands that should be given to the territory of Idaho for 
university purposes should be distributed according to 
the laws of this territory. 

The CHAIR. Does the gentleman propose to 
amend ? 

Mr. GRAY. May I ask the gentleman, in the third 
line, in regard to the phrase "unto the said university?" 
I think it is "said university" in every case where it 
occurs. 

Mr. MORGAN. Mr. Chairman, I move to strike 
out. 

SECRETARY reads: I move to strike out all of 
Section 5 after the word "university" in line 3. (Sec- 
onded). 

Mr. MORGAN. I do not wish to be understood as 
being against the university at Moscow. I hope there 
will be abundant donations given to that university, and 
I have no objections, of course, to any private donations 
being given to it. But it seems to me that to transfer 
in addition all of the university lands which will be 
given by the United States to this territory — which may 
include hundreds of thousands of acres — to one univer- 



ARTICLE X., SECTION 5 441 

sity would be unjust to the balance of the state. We 
may desire to establish normal universities, or other 
universities in different parts of the state hereafter. 
Of course this donation to this university would make 
it immensely rich, and would prevent the state probably 
from building up any other institution in the country, 
unless they did so out of the funds of the state hereafter. 

Mr. GRAY. It was not the intention of the com- 
mittee, nor is it my desire — but I say it does not read 
so; it says to the said university, and it seems to me 
the object of this amendment is, that if any donation 
should by act of Congress be given to this university, 
the gentleman does not want it to go there. I don't know 
as it will prevent it, that is, its going there, and it 
says, to said university: "all donations are hereby per- 
petuated unto said university of lands granted hereafter 
by Congress, or other donations for said university pur- 
poses." 

Mr. MORGAN. The language of the section, Mr. 
Chairman, is ambiguous as it is; I want to make it cer- 
tain. As a matter of course, if this is stricken out, if 
Congress should grant lands to this particular univer- 
sity, they could do it notwithstanding this, so that the 
gentleman's ideas would be preserved after all. But it 
is certainly ambiguous — "for said university purposes." 
If lands should be granted for university purposes, there 
would be a question at least as to whether this univer- 
sity should not take the whole of it. 

Mr. GRAY. Strike out the word "purposes." 

Mr. CLAGGETT. That does not meet it; it reads: 
Shall vest in the institution referred to in this section; 
that is, it shall be vested in the institution of the uni- 
versity at Moscow. 

Mr. HEYBURN. I propose an amendment. 

SECRETARY reads: Amend by striking out the 
word "said" in the fourth line, and insert the word 
"state" after the word "the" in said line, and strike out 
all after the word "institutions" in said line, and insert 
instead "for university purposes." 



442 ARTICLE X., SECTION 5 

The CHAIR. The clerk will make the amendment, 
and then read the section as proposed to be amended. 

SECRETARY reads: "All the rights, immunities, 
franchises and endowments heretofore granted or con- 
ferred upon the university at Moscow are hereby per- 
petuated unto said university, and all the lands here- 
after, etc., for the state for university purposes.'' (Sec- 
onded). 

Mr. BEATTY. As I look upon it, all the rights, 
immunities, franchises, etc., to which that institution 
is now entitled by the laws of this territory, will be 
perpetuated by the schedule which is to be adopted to 
this constitution, and then it would be left to future 
legislatures to control these matters. Moreover, these 
rights and immunities cannot be taken away by any 
act of ours here or any future legislature. I take it 
that all the coriditions of this section, as well as the 
following Section 6, are purely matters for legislative 
enactment hereafter, and I move you therefore to strike 
Section 5 entirely out. 

The CHAIR. Sent up as a substitute. 

Mr. HEYBURN. Mr. Chairman, the section does 
seem to be obnoxious to the criticism made upon it. The 
words "said university" in the last line, refer to the 
university named at Moscow, so that with the amend- 
ment of striking out the word "said" all of these lands 
and grants of Congress would belong to that university 
by name, because it is named in the section. Now as 
proposed by the amendment, it will confer upon 
them all the rights they have, and will confer upon 
them or vest in them all of the grants that are made 
directly to them, and grants that are made in general 
terms, for university purposes, will be grants that shall 
vest in the state for university purposes; that is the 
object of the amendment, so that the university fund of 
the state, outside of these matters that are specifically 
donated to this institution, shall go into the general 
university fund, to be subject to the direction and con- 
trol of the state through its legislature. As has been 



ARTICLE X., SECTION 5 443 

remarked, the people of this state might at some time 
see fit to institute some other institution of learning; 
they might think that one university was not sufficient 
for all purposes, and desire to establish one somewhere 
else. Then there would be a general university fund, 
the result of the donations of land, or whatever the 
donations may be in character, for the purpose of es- 
tablishing that; and in the absence of any such other 
institution, then that of course would be applied to 
this institution. As a matter of necessity there must 
be some university in the state which will derive and 
receive the benefits of all these donations, but we don't 
want to mortgage ourselves by making it impossible to 
apply any donation to the university funds to the estab- 
lishment and maintenance of any other university. 

Mr. SWEET. I hope the amendment offered by the 
gentleman from Alturas will prevail. There can be but 
one state university, although there may be branches of 
that university all over the state. For instance, it is 
proposed that a board of regents, consisting of so many 
members, shall be appointed. That board of regents has 
charge of the state university. A school of mines, at- 
tached to the state university, may be established at 
Coeur d'Alene; it is nevertheless a portion of the state 
university. An agricultural college may be established 
in Boise City, it is nevertheless a part of the state uni- 
versity and entitled to a part of any donations given to 
the state university. I apprehend that Congress will 
not be appropriating lands to any one institution except 
a state institution, and if it is desired that it be left 
uncertain as to where that institution shall be located, I 
hope it may be done openly and plainly, so that the 
people may understand just exactly what is meant. I 
therefore hope that the amendment proposed by the 
gentleman from Alturas, which strikes out the whole 
business and makes it plain and clear, may be adopted. 

Mr. GRAY. Mr. Chairman, the duties of this com- 
mittee are described on page 8: (reading) "This com- 
mittee to consider and report all matters pertaining to 



444 ARTICLE X., SECTION 5 

the location of the seat of government, the character 
and location of public buildings and grounds, and the 
control and government of the same." Those would 
seem to be the duties that are prescribed by this con- 
vention for that committee. Perhaps it might seem 
that it should come under the Education Bill, but those 
are the duties that are prescribed there to the com- 
mittee. I am not the chairman of the committee — the 
chairman does not seem to be present, but that was 
what was done, and it would seem from the directions 
there given that it was required to do what it did do. 

Mr. MAYHEW. I am in favor of striking out all 
the section, as proposed by Mr. Beatty. That leaves 
these donations and grants of land by the Congress of 
the United States to be controlled and regulated by the 
state legislature for other institutions of learning. Now 
if this university is to have branches or institutions 
connected with it, to be located in other places in the 
state, then I am in favor of the prevailing of the motion 
that this section be stricken out, but if it is not to apply 
in that way, I would be in favor of the amendment 
offered by the gentleman from Shoshone (Heyburn) 
because I think donations of every character and grants 
of land by the government of the United States to insti- 
tutions of learning should be distributed to the different 
institutions of learning throughout the state, and not to 
one single university. 

Mr. PINKHAM. I rise in support of the motion 
made by my colleague from Alturas county for this 
reason: That it appears that the committee who have 
made this report have gone beyond their jurisdiction 
in this matter, as their duties are confined to the seat 
of government and public buildings. We have another 
committee of this convention, known as the committee 
on Education, Schools and School and University Lands, 
where this proposition, in my way of thinking, properly 
belongs. In our report we have provided almost in the 
same language — a few discrepancies only, as to the 
rights, immunities and franchises made already by the 



ARTICLE X., SECTION 5 445 

legislature of this territory to this university. We have 
also provided for the election or appointment of a board 
of regents. When this subject comes up and we are 
discussing the section in the educational report, I think 
we can discuss it more fully and understandingly in 
that place than we can in the report of the committee 
submitted here. 

Mr. ALLEN. As I understood the amendment of 
the gentleman from Alturas, it was to include the strik- 
ing out of Sections 5 and 6. 

The CHAIR. Section 5. 

Mr. BEATTY. Section 5. Section 6 is not now under 
consideration. I shall make the same motion, if this 
motion prevails. 

Mr. GRAY. As the gentleman from Alturas 
says • 



Mr. HOWE. I rise to a point of order. This is the 
third time, I believe, the gentleman has risen on this 
question. I object. 

The CHAIR. The gentleman cannot proceed, then. 

Mr. GRAY. I only want to explain one word. 

The CHAIR. The gentleman cannot proceed with- 
out the convention's consent. 

Mr. MORGAN. I hope he may be allowed to pro- 
ceed. 

The CHAIR. When gentlemen have objected, he 
cannot proceed without the order of the convention. 

Mr. GRAY. What we may be sure 

The CHAIR. The gentleman is out of order. 

Mr. MORGAN! I move that he be allowed to pro- 
ceed. (Seconded). 

The CHAIR. The question is, that the gentleman 
be allowed to proceed. (Carried). 

Mr. GRAY. I want to ask the gentleman from Al- 
turas what other committee had directions the same as 
this has? For they have had it under consideration 
and given it to this committee, and therefore this com- 
mittee had nothing to say, when we were ordered to do 
so by the convention. I think there are things for the 



446 ARTICLE X., SECTION 5 

committee on Revision to agree upon — that they may 
agree upon some of these things and make them harmon- 
ize; but it was our duty to report, and the idea that 
because it has been submitted by another committee, 
that that committee must have it, I can't see. We had 
nothing to do with the university lands in our report; 
that was given to the educational committee. We have 
only fulfilled the duties that were given us. 

Mr. PINKHAM. I would like to ask the chairman 
of the committee who made this report how he can 
regulate public buildings when no public buildings ex- 
ist? Go out here and cut up a few bunches of sage- 
brush to exercise your authority over that, but until 
there are public buildings to regulate, I don't see how 
this committee can prescribe rules and regulations for 
the government of something that does not actually 
exist. 

The CHAIR. The chairman of the committee is 
not present. 

Mr. GRAY. We have an insane asylum; we have 
university grounds; there is a prison we have something 
to do with. I don't know 

(Cries of "Question"). 

The CHAIR. The question is first upon- the substi- 
tute of the gentleman from Alturas to strike out the 
entire section. (Vote). The chair is in doubt. (Rising 
vote shows 39 in the affirmative, 6 in the negative). 
The substitute is adopted. The adoption of the substi- 
tute carries with it the question of the other two amend- 
ments. 

PROPOSED SECTION SIX STRICKEN OUT. 

SECRETARY reads Section 6. 

Mr. McCONNELL. I move to strike out Section 6. 
(Seconded and Carried.) 

Section 5. 

SECRETARY reads Section 7. (5). 

Mr, HEYBURN, I have sent up an amendment. 



ARTICLE X., SECTION 5 447 

Mr. GRAY. In this section of the bill this morning, 
it was made, instead of "state treasurer," "attorney 
general." If there is no amendment 

Mr. HEYBURN. I have sent up an amendment to 
put that in there. I would like to ask the educational 
committee if that is in their report? (Laughter). 

SECRETARY reads: Amend Section 7 (5) by 
striking out in the first line after the word "state" the 
word "treasurer," and insert the words "attorney gen- 
eral." (Seconded). 

Mr. CLAGGETT. I move that the word "prisons" 
in the third line of the section be stricken out and the 
word "penitentiaries" be inserted. As it now stands it 
covers the case, and makes the governor, secretary of 
state and attorney general a board to have charge of 
all prisons, that is, of all the county jails and calabooses 
throughout the state. 

Mr. GRAY. I think the amendment should be ac- 
cepted. I will speak for the committee, as the chairman 
is not here. 

The CHAIR. The question then recurs upon the 
amendment offered by the gentleman from Shoshone, 
Mr. Heyburn, to amend Section 7 (5) by striking out 
in the first line after the word "state" the words "state 
treasurer" and inserting the words "attorney general." 

Mr. GRAY. On the part of the committee I will 
accept that amendment. 

The CHAIR. The question recurs upon the adopt- 
ion of the section as amended. 

SECRETARY reads: "The governor, secretary of 
state and attorney general," — the word "and" was not 
in the original bill. 

The CHAIR. The secretary will insert the word 
before "attorney general." 

Mr. ALLEN. I think in line 3, this language should 
be changed to read: "the management of state pris- 
ons." There is no state penitentiary, and there may be 
more than one, if other institutions are established. I 
offer that as an amendment. 



448 ARTICLE X., SECTION 6 

The CHAIR. The clause, as it will read after the 
committee has accepted the amendment of the gentle- 
man from Shoshone, is "direction and management of 
the penitentiaries of the state." The gentleman from 
Logan moves to strike out penitentiaries and insert 
"management of state prisons." The chair hears no 
second to the amendment. 

(Cries of "Question"). 

The CHAIR. The question then recurs upon the 
adoption of the section as amended. The clerk will 
read it. 

SECRETARY reads : Section 7 (5). The governor, 
secretary of state and attorney general shall constitute 
a board to be known as the state prison commissioners, 
and shall have the control, direction and management of 
the penitentiaries of the state. The governor shall be 
chairman, and the board shall appoint a warden, who 
may be removed at pleasure. The warden shall have 
the power to appoint his subordinates, subject to the 
approval of the said board. 

The CHAIR. The question is, shall the section be 
adopted as 

Mr. HEYBURN. I notice the word "and" instead 
of "who." It is not "and shall have," but "who shall 
have." 

The SECRETARY. I think that was my mistake 
in reading. 

Mr. MORGAN. I move to strike out the word 
"who" and insert the word "and" in the third line. 

Mr. GRAY. I will accept the amendment. 

The CHAIR. Then it will read "and shall have the 
control, direction and management of the state prisons." 
As many as favor its adoption as amended, say aye. 
(Vote and carried). The section is adopted. 

Section 6. 

SECRETARY reads Section 8 (6), and it is moved 
and seconded that the section be adopted. 

Mr. HARRIS. I see it reads: "There shall be ap- 



ARTICLE X., SECTION 6 449 

pointed by the governor three directors of the asylum, 
who shall be confirmed by the senate. They shall have 
the control, direction and management of the same" — 
which, of the senate or the asylum? is the question. 

Mr. HAGAN. I would like to ask what asylum that 
refers to. The asylum mentioned heretofore has been 
stricken out. What asylum does this refer to? 

The CHAIR. The only members of the committee 
present are Mr. Gray, Mr. McConnell and Mr. Mayhew. 
Perhaps 

Mr. McCONNELL. I move to amend Section 8 (6) 
by adding after the words "of said asylum" in line 
3 ■ 



Mr. CLAGGETT. What is the object of that? 

Mr. McCONNELL. The gentleman from Shoshone 
seemed to be in doubt whether it was mentioned. 

SECRETARY reads Mr. Heyburn's amendment: 
Amend Section 8 (6) by inserting after the word 
"same" in the third line, the words: "under such regu- 
lations as the legislature shall provide," so that it will 
read: "They shall have the control, direction and man- 
agement of the same, under such regulations as the 
legislature shall provide, and hold their offices for a per- 
iod of two years." 

The CHAIR. Now the amendment of the gentle- 
man from Latah. 

Mr. McCONNELL. I am not sending it up. 

The CHAIR. Is there any support to the gentle- 
man from Shoshone's amendment? 

Mr. MORGAN. I suggest that the words should be 
inserted, after the word "management," "of the said 
asylum," instead of the word "same." 

Mr. GRAY. We will accept the amendment. There 
is no asylum named there; it might be asylums. There 
is only one at the present time. 

The CHAIR. Does the committee accept the amend- 
ment? 

Mr. GRAY, We will; I don't know that it makes 



450 ARTICLE X., SECTION 6 

any difference, because there is none named. Perhaps it 
would be well to put that in the plural. 

Mr. HEYBURN. I will accept the suggestion of 
the committee, and put it in the plural. 

Mr. CLAGGETT. I have an amendment. 

SECRETARY reads : After the word "asylum" in 
the first line, add the words "for the insane." (Sec- 
onded). 

The CHAIR. The question is now upon adding the 
words "for the insane" after the word "asylum." 

Mr. GRAY. We will accept the amendment. 

The CHAIR. How does the balance read, with the 
other two amendments accepted? 

SECRETARY reads: There shall be appointed by 
the governor three directors of the asylums for the in- 
sane, who shall be confirmed by the senate. They shall 
have the control, direction and management of the said 
asylums under such regulations as the legislature shall 
provide, and hold their offices for a period of two years. 

Mr. ALLEN. I understood that the word "asylum" 
was changed from the singular to the plural. 

The SECRETARY. It is so. 

Mr. ALLEN. Now it seems to me this whole mat- 
ter is mystified to a certain extent. It seems to me this 
matter should be left to some other legislature. The 
proposition requires an amendment to the constitution. 

(Cries of "Question"). 

The CHAIR. Does the gentleman offer an amend- 
ment? 

Mr. ALLEN. No sir. 

The CHAIR. The question is upon the adoption of 
the section as amended by the committee. 

Mr. AINSLIE. Before that is put, I was going to 
suggest that the legislature may provide for another 
asylum in some other part of the territory. I think it 
should be put in the plural instead of the singular. 

The SECRETARY. It is in the plural. 

The CHAIR. So that it will read "asylums." The 
question is now upon the adoption of the section, with 



ARTICLE IV., SECTIONS 18 AND 19 451 

the amendments as accepted by the committee. (Car- 
ried). 

Section 7. 

SECRETARY reads Section 9 (7), and it is moved 
and seconded that the same be adopted. Carried. 

The CHAIR. If there be no objection, the clerk will 
insert the proper numbers. Two sections have been 
stricken out. 

ARTICLE TEN ADOPTED. 

Mr. HOWE. I move the adoption of this article. 
(Seconded and carried). 

The CHAIR. The article is adopted. 

Mr. CHANEY. I move that the committee now rise. 

Sections 18 and 19, Article 4. 

Mr. McCONNELL. Just a moment, please. I move 
that the vote by which Section 19 of the report of the 
committee on Executive Department was adopted be 
reconsidered. 

Mr. SHOUP. I second the motion. 

Mr. MAYHEW. I call the gentleman to order. 

Mr. McCONNELL. I would like to explain my 
reasons. 

The CHAIR. The gentleman cannot do it now; he 
may by proper motion in the convention. 

Mr. McCONNELL. Very well ; I would like to state 
my reasons, so that if I am not here it will not be over- 
looked. We have only provided certain offices, which 
may be filled by the governor, secretary of state, and so 
on, and in this bill I notice there is a prison commission 
to be appointed, consisting of certain persons as a board, 
and under the provision which we adopted in Section 19 
it cannot be constituted. 

Mr. AINSLIE. I will call the attention of the gen- 
tleman to Section 18. 

Mr. MAYHEW. I move the committee now rise 
and report the two articles back to the convention. Do 



452 REPORT — COMMITTEE OF WHOLE 

1 understand that we are not yet through with these two 
articles that have been considered this morning? 

The CHAIR. The chair does not understand the 
gentleman. Numbers five and six have been completed. 
The first one was laid aside to be reported and this one 
has just been adopted. Now the question is, what will 
you do with it, lay it aside, or report it to the conven- 
tion, with the recommendation that it be adopted? 

Mr. MAYHEW. I move that the committee now 
rise and report the articles back to the convention, with 
the recommendation that they be adopted. 

The CHAIR. Does the gentleman from Latah ac- 
cept the amendment of the gentleman from Shoshone? 

Mr. CHANEY. Yes sir. 

The CHAIR. The question is now that the com- 
mittee rise, and report the two articles, one on the Seat 
of Government and the other on the Executive Depart- 
ment, with the recommendation that they be adopted. 
(Carried). The committee will now rise. 

CONVENTION IN SESSION. 

Mr. PRESIDENT in the Chair. 

Mr. REID. Mr. President, the committee of the 
Whole have had under consideration the report of the 
committee on Executive Department, and report the 
same back to the convention and recommend as fol- 
lows: 1 

That sections 1, 2, 4, 5, 7, 8, 9, 10, 11, 13, 15, 16, 17, and 18 
be adopted. 

Amend section 3 by inserting the word "or" after the word 
"governor." In second line strike out the words "or superin- 
tendent of public instruction." 

Amend section 6, by inserting after the word "of" in the 
sixth line, the words; "office of a justice of the supreme or 
district court," and by inserting in line 4, after the word "any," 
the words "state or district." 

Amend section 12 by inserting before the first word in line 

2 the word "treason," and the word "other" after the word "or" 
in line 2. 



-This report is taken from the Journal, p. 148, not being in 
the reporter's notes. 



REPORT — COMMITTEE OF WHOLE 4 53 

Amend section 14 by inserting after the word "of" in line 2 
the word "treason," and after the word "or" first occurring in 
said line, the word "other." 

That the committee on Revision be authorized to fill the 
blanks in section 19 in conformity with the action of the con- 
vention when it shall have acted upon the report of the com- 
mittee on Salaries of Public Officers. 

Amend line 16, section 19, by adding after the word "univer- 
sity" the words; "or member of the state board of land commis- 
sioners." Also amend by striking out the word "tenure" and 
insert "term" in lieu thereof, in line 16. 

And that the report be adopted as amended. 

Also the committee has had under consideration the 
report of the committee on Seat of Government, Public 
Institutions, Buildings and Grounds, and report the 
same back, and recommend as follows: 

That sections 1, 3 and 9 be adopted. 

Amend section 2 by striking out the word "twenty" in the 
second line, and insert instead the word "ten." 

Amend section 4 by striking out all down to the word "shall" 
in line 2, and insert "all property and institutions of the terri- 
tory", and after the word "become" add "the property and", and 
strike out all after the word "Idaho." 

Strike out all of section 5. 

Strike out section 6. 

Amend section 7 by striking out the word "prison" and in- 
sert the word "penitentiary" in the third line; and by striking 
out in the first line, the words "state treasurer," and insert the 
words "and attorney general." 

Amend section 8 by inserting after the word "same" in the 
third line, "said asylums under such regulations as the legisla- 
ture shall provide," and after the word "asylum" in the first 
line add the words "for the insane." 

And that the report of the committee be adopted as amended. 

James W. Reid, Chairman. 

Mr. REID. This report I now make, with the mo- 
tion that the report lie upon the table, to be taken up at 
the pleasure of the convention. (Seconded). 

The CHAIR. You have heard the motion made by 
the chairman of the committee. (Vote and carried). 

Mr. MAYHEW. I now move that this convention 
take a recess until 2:30 p. m. (Seconded). 

Mr. TAYLOR. I move to amend by making it two 
o'clock. (Seconded). 



454 ARTICLE III., SECTION 1 

The CHAIR. It is moved and seconded that the 
convention take a recess until two o'clock. 

Mr. TAYLOR. I will withdraw the amendment 
and leave it 2 :30. 

The CHAIR. The question is to adjourn until half 
past two o'clock. (Vote and carried). 



AFTERNOON SESSION. 

ARTICLE III. — LEGISLATIVE DEPARTMENT. 

Mr. MORGAN. I move that the convention go into 
committee of the Whole upon the report of the commit- 
tee on Legislative Department. 

Mr. HEYBURN. I second the motion. (Vote and 
carried). 

Mr. PRESIDENT. The gentleman from Latah, Mr. 
McConnell, will take the chair. 

COMMITTEE OF THE WHOLE IN SESSION. 

Mr. McCONNELL in the Chair. 
The CHAIR. The business before the committee is 
the report of the committee on Legislative Department. 

Section 1. 

SECRETARY reads Section 1. 

Mr. KING. Mr. Chairman, I wish to introduce an 
amendment to Section 1. I move to amend Section 1 
by striking out the words "senate and," in the first line. 

Mr. HARRIS. I second the amendment. 

Mr. MAXEY. I have an amendment. 

Mr. KING. The section I want to amend will then 
read: "The legislative power of the state shall be 
vested in a house of representatives," doing away en- 
tirely with the senate. The reason which prompts me 
to make this amendment will require some explanation, 
as it makes a change in our form of government dif- 
ferent from anything we have in the Union of the 38 
states. It makes it different from any legislative body 



ARTICLE III., SECTION 1 455 

in the civilized world that I am aware of. In all civil- 
ized nations that have adopted a constitutional form of 
government, they are composed of three branches, 
among which are the legislative, consisting of a lower 
house and a senate, under various names, and the execu- 
tive. 

In ancient times there were but three forms of gov- 
ernment known, with slight modifications; the one es- 
tablished a monarchy, the second an aristocracy, and 
the third a democracy. In a democracy the whole power 
of the government was centered in the people; they 
made the laws and they executed the laws. In the aris- 
tocratic form of government the law-making power was 
in the aristocracy, and as a consequence they framed 
and executed all its laws; they were the government, in 
fact — the law-making power, the executive power. In a 
monarchy, then as now — in an absolute monarchy the 
law-making power was centered in the king; he made 
the laws and executed them. It was not until the adopt- 
ion of the English constitution — or rather, it was not 
regularly adopted; it is a thing that has grown up, say 
in the last four hundred years. It was an attempt to 
combine in one government the three distinct forms of 
government that had hitherto been in existence. It was 
to create one branch of the legislature composed of the 
people, or a portion of them, another branch to be com- 
posed of the aristocracy, and a third to be composed of 
the king. Each one of these branches had a complete 
veto upon the powers of the other. No law could be 
enacted by the house of representatives, or the lower 
house, by whatever name it might be called. In Eng- 
land, from which we have adopted our system, it was 
called the House of Commons. The House of Commons 
could not pass a law, neither could the House of Lords 
pass a law, nor could the king pass a law; it required 
the concurrent jurisdiction of these three supreme 
powers, each having a check upon the other. We have 
adopted the same system. The people in their repre- 
sentative capacity are unable to pass a law without the 



456 ARTICLE III., SECTION 1 

consent of the senate in any state in the Union, or in 
the United States. This thing has grown up by a slow 
growth in England in the courts of justice. England 
at the close of what might be called the dark ages, was 
like all the nations of Europe, governed by kings who 
had absolute power in their hands. They had the law- 
making power, with some slight restrictions. The aris- 
tocracy rose up against their kings, and wrested from 
their kings a part of their power. They wrested from 
King John a large part of what we call the prerogatives 
of the crown, among which was the right to a voice in 
making the laws. And there was also conferred upon 
the people a similar right in the House of Commons, but 
no power like what now exists. The lords, to secure 
themselves from the attacks of the people on the one 
hand, and from the attacks of the king on the other, 
who might interfere with their rights, procured a pro- 
vision that there should never be a law passed without 
their consent. They had an absolute veto upon every 
law that might be proposed, that might affect their in- 
terests or the interests of the country. They were to 
be the judges, and there was no power provided by 
which their decision could be overruled. It was essen- 
tially an aristocratic government. They, by the laws of 
their government had almost the absolute control of the 
House of Commons, for no man could be a member of 
the House of Commons unless he was a land-holder. 
There was no man could vote for a member of the House 
of Commons unless he was possessed of the qualifications 
of a land-holder, or a renter of land to a certain amount. 
That excluded from the right of suffrage the great mass 
of the people of the country. For ages England was 
ruled exclusively by a king and an aristocracy — the 
whole power was in their hands. By the exercise of 
their rights as the great land-holders of the country, 
holding all the great mass of the people as their tenants, 
dictating to them how they should vote, with the privi- 
leges that had been conferred upon the landed aristo- 
cracy, and having the right of representation in what 



ARTICLE III., SECTION 1 457 

has been termed in these latter days, rotten boroughs, 
where a single land-holder had sometimes the appoint- 
ing of pretty near a score of the members of the House 
of Commons — for instance there was one borough with 
a single solitary voter, and he a tenant simply of one of 
the great land-holders — the land-holder then under that 
system could say to these men: Vote thus and so, or I 
will turn you off the land. The Duke of Sutherland, I 
believe, had seven of these rotten boroughs; there was 
not a member of the royal family but what had a large 
number of these rotten boroughs under his control, and 
by this means they could control the lower house of 
parliament. They practically had a negative upon all 
the laws that could be passed; nothing could become a 
law without their consent. It was an institution got 
up for the protection of the privileged classes; it never 
was pretended that it was for the interests of the great 
mass of the people. Yet our forefathers participated in 
this belief of the right of the aristocracy to have a 
voice, in adopting the same system, and we have adopted 
the same system in this country, only under a different 
name. The senate of the United States stands there, a 
body where 39 men have the absolute power in their 
hands to defeat all the legislation that Congress can 
enact. We have in every state of the Union a senate 
consisting of a few men where a majority of from ten 
to fifteen or twenty men have an absolute power to 
prevent the passage of any law, the amendment of any 
law, or the repeal of any law. What is this done for? 
Why invest a body of men so few in number with this 
vast power of controlling the laws of the country? Is 
it done in the interest of the great mass of the people? 
I think no man will claim that it is for the interest of 
the great mass. It is done in the interest of a class of 
men who have by law secured rights and powers and 
privileges inconsistent, in my opinion, with the privi- 
leges that should be conferred by a nation that professes 
to regard all men as equal. Now we are proposing a 
constitution here in which ten men are to be invested 



458 ARTICLE III., SECTION 1 

with the absolute power to defeat the legislation of the 
legislature of this state by the house. Now a majority 
of the house of representatives who represent the peo- 
ple, knowing their wishes and their wants, can go and 
frame a law, and by this constitution ten men will have 
the absolute power to prevent it. If the representa- 
tives of the people think that there are laws upon the 
statute book that are against the great interests of the 
great mass of the people, ten men by this constitution 
can stop any law proposing to repeal them. If there 
is a proposition made and sanctioned by a great major- 
ity of the people of this state to amend a law in the in- 
terest of the people, there are ten men who by this con- 
stitution have the power conferred upon them to pre- 
vent the enactment of that law, and there is no appeal, 
no remedy. Should the governor refuse to sanction it, 
the law provides a remedy, that three-fourths of the 
houses may override the decision, but you are putting 
in this constitution precisely the same power that is 
conferred by the common law of England upon the 
House of Lords — the absolute veto of anything that 
does not suit their wishes. If we put that in, we can- 
not change it for years to come. If you elect a class 
of men that will not obey the wishes of the people you 
have got to wait four years to turn them out. In the 
meantime there is no doubt but a class of men possessed 
of vast wealth, who have secured rights, powers and 
privileges that enable them to amass wealth, they are 
interested in that — they are the men who would take a 
deep interest in securing the election of ten of their 
men when the time comes around. The people are 
scattered over a vast extent of country, having no 
special interest in the existence of this law, whatever 
it may be, either a new law or the repeal of an old law 
or the amendment of a law, and cannot combine against 
the great wealth of the country to secure the defeat of 
men who are in favor of keeping up this system. As 
it is in the senate of the United States, here are men — 
do they represent the people? It is a well known fact 



ARTICLE HI., SECTION 1 459 

and accepted by almost every man, that the great bulk 
of men in there have amassed enormous wealth. Com- 
pared with the nobility of England sitting in the House 
of Lords they have amassed in a few years more wealth 
than has been amassed by the aristocracy of England 
in hundreds of years, aided as they have been by the 
laws of primogeniture and entail; yet these men by the 
operation of laws that have been enacted in their inter- 
ests, have acquired wealth that threw them entirely in 
the shade, and we have men in our midst who by the 
operation of these laws have secured fortunes such as 
the richest aristocrats of Europe cannot equal. Those 
laws can never be repealed so long as you put it into 
the hands of a few men who have been benefitted by 
those laws, who have the wealth to control legislation 
and say: All we want is that 39 men shall be in our 
interest seated in the United States senate, and we defy 
you people to repeal that law. 

Another question comes up in regard to us in this 
state, and that is the apportionment of senators. If we 
do away with the senate you will do away with a very 
vexatious question that is about to trouble this conven- 
tion, that is, how to carry out the district problem in 
this state. This proposition provides for the election of 
one senator from every county. You propose as repub- 
licans, as democrats, do you, to give to a county like 
Cassia with a population of 1,400 inhabitants 

Mr. BEATTY. Mr. President. 

Mr. KING. — the same power in making laws as 
is given to the largest county in the state with a popula- 
tion, of ten or twelve 

Mr. BEATTY. I want to know whether the ten- 
minute rule shall be enforced this afternoon or not, 

The CHAIR. I will call the attention of Mr. King 
to the fact that the gentleman's time has expired. 

Mr. STANDROD. I move the gentleman have an 
extension of ten minutes. He is an old gentleman and 
labors under some disability. (Motion seconded). 

Mr. MAXEY. I suggest that the gentleman con- 



460 ARTICLE III., SECTION 1 

fine himself to the section under consideration. 

The CHAIR. Is it the pleasure of the convention 
that the gentleman have further time? There is no ob- 
jection; go on, Mr. King. 

Mr. KING. I say, Mr. Chairman, that we will meet 
a great difficulty here. We are proposing to do a thing, 
I think, that is utterly unjust to the people of this state. 
We are proposing in the making of our laws to give to 
the smallest county in this state, with a population not 
one-fifth of some other county, equal power with us in 
the making of the laws of the state. 

The CHAIE. That section is not under discussion, 
Mr. King. 

Mr. KING. I know that, but I am just alluding to 
the principle involved. No matter what you do, you are 
going to give to a senate consisting of a few men, 
where ten men is a majority — you are giving them ab- 
solute power to defeat the passage of any law that may 
be proposed by the people of this state, whether it shall 
be passed by an absolute majority or a unanimous vote 
of the lower house of the legislature, ten men can de- 
feat it. For instance, suppose that all the representa- 
tives there should vote in favor of a law, or the repeal 
of a law, or the amendment of a law; by this constitu- 
tion, if you adopt it as proposed, you give to ten men the 
absolute power to put their veto upon it, to say that 
you shall not have that law as you want it. And you 
have no power under heaven by which you can change 
that until another election comes around. I say that 
is not a republican form of government if you do that. 
I do not look upon the government of the United States 
as a republican form of government. Why, you go into 
the senate of the United States, and the state of Dela- 
ware, with a population of less than 200,000, has got 
the same power in the senate as the state of New York 
with over five millions. You give the little state of 
Rhode Island, with only a population of 250,000, just 
as much power in the making of laws as you give to the 
state of Pennsylvania. You give to the state of New 



ARTICLE III., SECTION 1 4 61 

Hampshire just as much power in the making of laws 
as you give to the big state of Ohio. You give to Ver- 
mont just as much power in the making of laws as you 
give to the great state of Illinois. You may say that 
one has got more representatives than the other, but 
what do your representatives amount to when you have 
an equal voice in the senate, where each state stands 
upon an equality — each state with two votes; and no 
man will say that if a big state, with all its members of 
congress, were to pass a law here, that the senators in 
there must pass upon, in every instance, taking a vote 
separate from them, that the big state and the little 
state would not be of equal force. I say it amounts to 
this. If you adopt a senate by the provision as it is in 
there provided, that they shall have an absolute veto, 
then ten men will have it in their power to prohibit, 
you may say, any change in our laws whatever. I do 
not consider that a republican form of government; it 
is the establishment of an aristocracy. The adoption of 
this clause in this provision, that is, the putting into 
this chapter of our having a senate — by that very act 
you confer upon these men this power. Just as it was 
in the republic of Venice, where the Council of Ten 
were chosen by another body, and when once chosen they 
were the most despotic government on the face of the 
earth, a body of men ten in number that had absolute 
power, the same as proposed here. Nothing could be- 
come a law wthout their consent; no man, you might 
say, could be one of the officers of the law without their 
consent. You give to the senate the right to say who 
the governor shall appoint to the offices that we incor- 
porate in our constitution. They have that power and 
there is no way to take it from them; it is a power 
granted to them by this constitution; it is a power that 
has been granted by the constitution of every state in 
the Union, giving a few men the absolute power to put 
a check upon anything which they may consider against 
their interests, and they are the men that generally get 
there. Why, they are those men that have an ax to 



462 ARTICLE III., SECTION 1 

grind ; there will be a good many axes to grind in this state 
by and by, in all human probability. If congress should 
grant to this state large tracts of land, which is not im- 
probable, as has generally been the case, there will be 
a necessity to frame laws for the disposal of those 
lands. Why invest ten men with absolute power to 
prevent the passage of any Jaw unless it suits their 
own interests? Look at the chances there always are 
for men to make money, as we know from experience 
with this class of men, by doing this thing. We 
read the charges made in the democratic and repub- 
lican papers in every state of the Union, almost, to the 
effect that a seat in the senate has been sought by dif- 
ferent men to enable them to make money. These 
senators have been ready to stand in the interests of 
that class of men. Men seek for that office in prefer- 
ence to being a representative; why? Because they have 
double and triple the power. It is an encouragement, as 
I consider, to that class of politicians and men who 
make politics a trade, who strive in all ways possible 
to get a position in the senate of a state or the senate 
of the United States, that they may have a chance to 
make money. I do not look upon this system of the 
senate as founded upon anything but a desire to increase 
the wealth of the privileged class, to increase their 
power and their patronage. It was used for that pur- 
pose inevitably. There was no pretext that it was for 
any other class of citizens than to guard and protect 
the rights of the aristocrats, and we have followed in 
that path. It has been a very good thing for a good 
many men. Honest men in this country have been un- 
able to secure the enactment of laws or to prevent their 
repeal when it suited their circumstances. That has 
enabled us in the short period of 25 years to establish 
an aristocracy of wealth such as this world never saw 
before, and there will be no chance in my opinion to 
repeal it as long as we give a few men in each state 
the absolute power to decree its legislation. 

(Cries of "Question"). 

Mr. PARKER, Mr. President, the chief hostility 



ARTICLE III., SECTION 1 463 

to a second chamber arises from a general belief that 
it is too exclusive and aristocratic a body to have any 
part in a republican or democratic form of government, 
and that the second chamber is ever opposed to the best 
interests of the people. This belief, this hostility against 
a second chamber, originated in English history, in the 
history of the House of Lords of Great Britain, which 
was a house of hereditary legislators, and as such it 
was always found in opposition to the best interests 
and wishes of the people. So too in our own United 
States we find the United States senate composed today 
largely of aristocrats and millionaires, and that too has 
added its influence in creating hostility against a sec- 
ond chamber. But in a state legislature, Mr. President, 
we go directly to the people to elect our state repre- 
sentatives and senators also, and I therefore claim that 
a state senator is as much a direct representative of 
the people as a state representative himself, and I think 
if you will turn back to national history you will find 
that the framers of our national republic were wise 
when they provided for two councils, because they were 
afraid to trust any one man or any one constituted au- 
thority with exclusive power. But, Mr. President, the 
majority of a single chamber such as is contemplated 
by this amendment, easily becomes despotic and arbi- 
trary, because there is no authority over it to check 
that despotism. 

Mr. MORGAN. I call for the question. 

The CHAIR. The question before the committee 
is: Shall the amendment proposed by the gentleman 
from Shoshone (Mr. King,) be adopted? (Mr. King says 
"aye"). Those opposed "no." (Vote). A majority 
vote in the negative; the motion is lost. The question 
is now upon the amendment offered by the gentleman 
from Ada, (Mr. Maxey). 

SECRETARY reads: Amend Section 1 by adding 
after the word "representatives" in the second line the 
following: "The secretary of state shall call the house 
of representatives to order at the opening of each new 
assembly and preside over it until a temporary presid- 



464 ARTICLE III., SECTION 2 

ing officer thereof shall have been elected from that body 
and seated. Said presiding officer must be one of the 
representatives elect." 

Mr. MAXEY. Mr. President, you will observe that 
my change of the wording of the original text is simply 
to add this provision in the middle of the section. The 
report of the executive committee provides for a senate 
and president of the senate, but nothing is said about a 
presiding officer or any officer to organize the house of 
representatives. It seems to me it is necessary that 
some one should be designated to call the house of 
representatives to order and get them started. 

Mr. PIERCE. In Section 10 of this article the gen- 
tleman will find it says each house when it assembles 
shall choose its own officers, etc. 

Mr. MAXEY. The gentleman will observe that this 
is only to set the house in motion; it does not prohibit 
them from electing their own officers. 

The CHAIR. The question before the committee is 
on the adoption of the amendment offered by Mr. Maxey 
of Ada. (Vote) . The motion is lost. The question now 
recurs upon the adoption of the original section. 

SECRETARY reads Section 1. 

The CHAIR. The question before the committee 
is upon the adoption of the section as read. (The mo- 
tion is carried and the section declared adopted.) 

Section 2. 

SECRETARY reads Section 2. 1 



1 — Sec. 2. The senate shall consist of one senator from each 
county, and the house of representatives of double the num- 
ber of the senate: Provided, the legislature may increase the 
number of representatives from time to time, but the number 
of representatives shall at no time be more than three times 
the number of senators: Provided, also, that the number of 
senators shall never be greater nor less than the number of 
counties. The senators shall be chosen by the electors of the 
respective counties, and the representatives shall be chosen 
by the electors of the respective districts into which the state 
may from time to time be divided by law. — (As given in the 
Idaho Daily Statesman of July 16th.) 



ARTICLE III., SECTION 2 465 

Mr. MORGAN. I offer the following substitute for 
Section 2. 

Mr. HARRIS. I move the adoption of the section 
as read. (Motion seconded). 

The CHAIR. It is moved and seconded that the 
section as read be adopted. The gentleman from Bing- 
ham offers the following substitute. 

SECRETARY reads substitute for Sec. 2. The senate 
shall consist of twelve members, and the house of repre- 
sentatives of twenty-four members. The legislature may 
increase the number of senators and representatives: 
Provided, That the number of senators shall never ex- 
ceed twenty-four, and the house of representatives shall 
never exceed sixty members. 

The senators and representatives shall be chosen by 
the electors of the respective counties or districts into 
which the state may from time to time be divided by 
law. 

Mr. MORGAN. I move the adoption of this sub- 
stitute. 

Mr. HEYBURN. I second the motion. 

The CHAIR. Are you ready for the question. 

Mr. AINSLIE. I would like to know how the sena- 
tors and representatives will be elected to the first state 
legislature under that provision. There is no appor- 
tionment or any provision made for it. There should 
be an apportionment immediately made re-districting 
all the territory for the district judges and prescribing 
what counties shall constitute the First, Second, Third 
and Fourth districts, etc. 

The CHAIR. The Apportionment committee has 
provided for that I suppose; they have not reported yet. 

Mr. AINSLIE. I think I should prefer the original 
draft as it stands. 

Mr. MORGAN. I would say, Mr. Chairman, that 
the committee on Legislative Department did not think 
it was in their province to make any report with refer- 
ence to the apportionment of the territory. That is en- 



466 ARTICLE III., SECTION 2 

tirely in the hands of another committee ; they, of course, 
will make that arrangement. 

Mr. REID. Before the vote is put on the substi- 
tute I would like to call the attention of the convention 
to one fact, that under the substitute some counties may 
be left both without a senator and a representative. 
You may search all the constitutions and you will always 
find a provision that a county shall have a senator or 
representative. I prefer the original section as it is 
embodied in the report of the committee on Legislative 
Department, and I believe it will hold them in check 
better than the substitute. 

The CHAIR. The question is upon the adoption of 
the substitute. 

Mr. AINSLIE. I move as an amendment to that 
substitute to strike out the whole section. 

Mr. MAYHEW. I am rather inclined to think it 
would be better not to do that. As one of the members 
of this body I do not know what the committee on Ap- 
portionment is going to do. We have had no report or 
any intimation what the provisions will be in the article 
on apportionment. It may be necessary even after we 
hear the report of the committee on Apportionment to 
enact or pass just such a section as we have in here. 
I am opposed entirely to the substitute as offered by the 
gentleman. I do not know who did offer it. And I am 
opposed to striking out this section as it stands. I am 
of the opinion of Mr. Reid on the subject, that it will 
leave the matter so that some of these counties will be 
without representation in the senate. 

Mr. REID. The way we have got it now every 
county is bound to have a representative. 

Mr. MAYHEW. Certainly; it may be changed of 
course, but this section 2 provides absolutely by this 
article in the constitution that each county shall be 
represented with one senator and one representative, 
and may be increased according to the number of in- 
habitants. We are going out of this colonial form of 
government into state government, and my own opinion 



ARTICLE III., SECTION 2 467 

always has been, Mr. Chairman, so far as the legisla- 
ture is concerned, that it has not been sufficiently repre- 
sented in the legislative halls. I think our representa- 
tive apportionment by the organic act of Congress has 
been too small, and my experience has been that the 
larger the representation, so long as it is not a burden 
to the people, the better laws we have enacted and 
better men get into the legislature. You have a few 
persons in the legislature every session that had better 
stay at home and if you have a larger number the 
state will be better represented. 

The CHAIR. Is there any second to the motion of 
the gentleman from Boise? 

Mr. SHOUP. Mr. Chairman, as regards the duties 
of the committee of Legislative Apportionment, I take 
it the rules direct this committee to consider and report 
the apportionment of members of the legislative body 
of the state to the several counties, and to district the 
state. I do not understand that this committee is 
authorized to fix the number of members in either 
house. That belongs to another committee, and if it had 
been decided how many members we shall have in each 
branch of the legislature, then the apportionment com- 
mittee could make an apportionment; consequently 
there will be nothing for that committee to do until 
that question is decided. 

Mr. MAYHEW. I do not understand that this is 
the view of it. I think this section does provide, — it 
does not say it shall not be increased, but it says, as I 
consider the point, Mr. Chairman, that they shall be 
represented in such manner that each county shall have 
a senator, and that the representation shall be in- 
creased according and in the manner prescribed by 
law, — by the legislative body shall be increased. Now 
I think as a foundation for the legislative body that 
some law, some act, should be incorporated in the con- 
stitution, and I cannot conceive any arrangement that 
meets my approbation any better than the section in 
this article. I can't say that I should be in favor of 



4 68 ARTICLE III., SECTION 2 

each county having a senator, because that would put 
the counties that have a very large number of inhabi- 
tants and the counties that have a small number of 
inhabitants on an equal footing, but as a foundation I 
think it is necessary that this article should remain in 
the constitution subject to any amendment. That sub- 
stitute the gentleman offers, I cannot conceive what the 
reason for it is, and I have heard no reason on this 
floor for its support, and I think we should be careful 
in adopting any such measure as that substitute. 

Mr. AINSLIE. The reason I made that motion was 
that it had been decided by the committee of the Whole 
on several occasions prior to this time, that where mat- 
ters have been referred to other committees organized 
under the direction of this body, that the particular 
committee should report those measures and not the 
other committee. This morning in passing upon this 
report of the committee on Seat of Government, Pub- 
lic Buildings and Grounds, there were two provisions, 
five and six, in regard to franchises and endowments 
of the university at Moscow, and those provisions were 
stricken out for the reason that the committee on Edu- 
cation claims they covered those sections in their report, 
and it properly belonged to them; they were stricken 
out almost unanimously. Now this question of appor- 
tionment under these rules is left to the committee on 
Apportionment, on page 7 of our rules; which is con- 
stituted the largest committee of this convention, as I 
think. Now the committee on Legislative Department, 
it would seem, usurped the functions of the committee 
on Apportionment in placing in the second section of 
their report the apportionment of state senators of the 
legislature. Now, we have heretofore sustained the 
immunities and privileges of every committee in the 
committee of the Whole that has legitimately considered 
the subject for which that committee was organized by 
the house. Now I insist this belongs to the committee 
on Apportionment, and we have the largest committee 



ARTICLE III., SECTION 2 469 

of the convention to consider that subject. I say strike 
out Sec. 2 and let them report that matter. 

Mr. REID. I hope that will not prevail. I do not 
see any lack of harmony between this section and the 
duties of the committee on Apportionment. This pro- 
vides a number of officers, how they shall be elected, and 
where from and how the representatives shall be ap- 
portioned, would be all that was left to the committee 
on Apportionment. They can apportion the representa- 
tives, but this section should fix the senators. Now 
when they come to fix the number of representatives, 
they may make it two or three in large and populous 
counties, and they may take a small county and attach 
it to a large one, but this assures to large and small 
counties one member in these bodies, and I am opposed 
to the substitute as stated by the gentleman. We have 
been living under the organic act; we have been used to 
twelve men in the senate and twenty-four in the house. 
If we have sufficient resources and sufficient importance 
to become a state, I think our senate should be larger 
than twelve, so as to have representation for the entire 
territory and its diversified interests; we should have 
as large a body as we can support without burdening 
the taxpayers, and I think the original section is a good 
one. If we try it and it does not work well, the people 
are going to revise it. 

Mr. CLARK. I have an amendment to the sub- 
stitute which I have sent up. 

SECRETARY reads: I move to amend and substi- 
tute by increasing the number of senators to eighteen 
and representatives to thirty-six, and adding; "pro- 
vided, each county shall have at least one representa- 
tive." 

Mr. PARKER. I second the amendment. 

The CHAIR. It is moved and seconded that the 
substitute be adopted. 

Mr. HARRIS. I shall heartily oppose both the 
substitute and the amendment, because I don't think 
there can be a more equitable distribution of the sena- 



470 ARTICLE III., SECTION 2 

tors than that proposed by the original text. It gives to 
each county a voice in the confirmation of the govern- 
or's appointments, — not that the senate is a higher 
body than the house. That gives to each of the counties 
an equal voice. In this territory, of eighteen counties, 
there are fourteen of them of very nearly equal voting 
strength; there is not a great deal of difference judging 
by their representation in this body. There are, of the 
other four, three which are very nearly equal. Now 
that matter can be adjusted, so as to make them equal 
in the whole legislature, by apportioning to them a larger 
number of representatives. I contend, as a member 
from one of the smaller counties, for the original bill as 
reported. 

Mr. CLAGGETT. Mr. Chairman, I certainly do 
hope this section 2 will not be adopted, and that the 
substitute offered by the gentleman from Bingham 
will be. We are now laying the foundation of the 
political power of the state; I am not talking about 
power in the abstract, but the political power, — that 
power which each subdivision of the state is to repre- 
sent and exercise in the councils of the state. And if 
it be true that all power is of right derived from the 
people, and if it be further true that the majority of 
the people should govern and express the will of the 
whole, then it is perfectly plain, — at least to my mind, 
that equality of representation should be the controlling 
factor in the solution of this problem of apportionment, 
or rather of representation. The proposition which is 
here embraced in this report of the committee on Legis- 
lative Department, is a proposition to this effect, that 
each subdivision by counties in this state shall have an 
equal representation in the smallest and most select 
body of the two houses of the legislature. When we 
get down to the merits of the proposition, it is nothing 
more or less than a proposition to give one county that 
votes 500 votes the same political strength as another 
one that votes ten thousand. Whatever may be the 
difficulty of representation now, — and it is now very 



ARTICLE III., SECTION 2 471 

greatly unequal, we are making a constitution liere for 
all time, so far as this convention is concerned, and 
these inequalities will become more and more glaring 
in the different counties as we proceed. If this con- 
vention shall be of the opinion that each county shall be 
represented in one house or the other, then by all means 
the most equitable proposition would be to give each 
county a representative in the lower house, which will 
consist of from two to three times as many members as 
the senate. When you get right down to the proposi- 
tion and analyze it, you will find that the proposition em- 
braced in this section 2 reported by the committee on 
Legislative Department, amounts to this; that about 
one-third or two-fifths of the voters of this state are 
to have control of one of the co-ordinate branches of 
the legislature, and I say it is in direct violation of 
every rule and principle upon which representative 
government is based in the United States. I think I 
am not exposing any secrets when I say that both 
political parties on this floor have substantially agreed 
upon one proposition, although as yet it has not come 
before the convention freely for discussion, and that is, 
that a large portion of our population, — or certainly a 
respectable portion in numbers, — the Mormon popula- 
tion, is to be disfranchised. I will take one of the 
counties which does not poll one hundred legal votes, 
with that proposition here, and it has the same political 
power in that small and select body as would be had by 
the largest county if it had ten thousand votes. If my 
friend from Washington should advocate it upon the 
true ground he has in his mind, — not upon the ground 
that it is fair and just, but upon the ground that it 
gives his county an advantage it is not entitled to, then 
at least his advocacy of this proposition would be in- 
telligible. 

Mr. POE. Mr. Chairman, I favor the measure as 
originally presented. I am of the opinion that it is a 
fair and equitable division of the political power of 
this territory. I take it that each county of this terri- 



472 ARTICLE III., SECTION 2 

tory is a sovereign within a sovereign, and that the 
people within that sovereign have rights in legislative 
bodies, and they are entitled, before any of those rights 
can be taken away from them, to a representation in 
that body. Now let us see as to the equality of repre- 
sentation. We take as a basis that each county, irre- 
spective of the amount of population it may have, shall 
have in the legislature at least one representative, — 
absolutely one representative. Now the idea is fair 
that the representative shall be a senator. That county 
which sends a senator may have enough population to 
entitle it to a representative also. If it has not enough 
population to entitle it to a representative, then of 
course all the representation it has in the legislature is 
confined to a senator alone. The gentleman from Sho- 
shone, (Mr. Claggett) thinks it would not be fair for 
a little, insignificant county, that had but a few hun- 
dred population, to have the same representation in 
power in the senate that the larger county would have. 
Now I say that it would be equally unfair for that 
large county, the county with vast population and diver- 
sified interests, to have absolute control and power over 
the legislature and over the people of that little county, 
so that they might pass any laws they saw proper, 
without this other county having proper representation 
in that body. As it is, we, in every state of the Union, 
have prospered under this theory of two senators from 
every state in the Union. The least state in population, 
according to the size of its representation in the senate 
of the United States is the greatest ; and it was recog- 
nized as being according to the justice of the thing, 
because they are entitled absolutely to a voice there, 
Now when we come to the larger states, the constitu- 
tion has wisely provided, — and so does the provision in 
this wisely provide, that these larger counties shall 
have a representation in proportion to their population 
in the lower branch of the legislature. I therefore can- 



ARTICLE III., SECTION 2 473 

not conceive where there is anything unfair in allowing 
the smaller county an absolute representation in the 
form of a senator, and the larger county the same rep- 
resentation. To the larger county having more popula- 
tion, give two, three, four or five representatives, in 
proportion to its population, in the house of representa- 
tives. When it comes to a joint ballot, as it would 
upon the election of a senator, that larger county has 
got its advantage in its vote over the smaller county, 
yet that county has got a representation there, and as 
was wisely suggested, whenever the question arose of 
an appointment by the executive that requires the con- 
firmation of the senate, — when we say the confirmation 
of the senate, we mean the confirmation of the people 
through their representatives, — I say that that county 
is entitled to a voice in that council to say whether that 
appointment shall be confirmed or not. 

Mr. HEYBURN. Mr. Chairman, it seems to me the 
gentleman entirely misapprehends the principle upon 
which states are represented in the United States sen- 
ate. There is a certain sovereignty about a state; it 
may frame its own constitution, within certain limits 
it has its own separate government, and it is in its 
essential being a state. No such character can be at- 
tached to the existence of a county. We have heard of 
state sovereignty, but I never heard of county sovereign- 
ty. I suppose next we will have township and village 
sovereignty, so that they will have to be represented, 
each as an integral thing of itself, in our legislative 
bodies. But the principle that applies to the one does 
not apply to the other at all. These counties are not 
unrepresented, as one might be led to infer from the 
arguments of the gentleman, — they are not unrepre- 
sented. They are to be attached together until a 
sufficient number of them comprise a sufficient number 
of voters to entitle them to a representative, and the 
person who represents the other counties represents 
each one of those counties, just as though he was the 



474 ARTICLE III., SECTION 3 

sole representative from that county. It seems to me 
it is so manifestly unjust upon the face of the state- 
ment, that a county that only casts a hundred or two 
legal votes, should have the same power in the coun- 
cils of the state as a county that casts several hundred. 
It is un-American, it is a violation of the principles that 
underlie our government of equal representation to all 
the people, based upon the number of people themselves. 

(Cries of "Question.") 

The CHAIR. The question is before the committee 
on the adoption of the amendment offered by Mr. 
Clark of Ada to the substitute offered by Mr. Morgan 
of Bingham. (Vote.) The motion is lost. The ques- 
tion recurs upon the original motion, the adoption of the 
substitute. (Vote.) The chair is in doubt. (Rising 
vote shows 31 in the affirmative, 20 in the negative.) 
The motion to adopt the substitute is carried, and the 
substitute is adopted in the place of section 2. 

Section 3. 1 



-Section 3. The senators shall be elected for the term of 
four years and the representatives for the term of two years 
from and after the first day of December next following the 
general election: Provided, however, that when the senators 
elected at the first election after the adoption of this con- 
stitution shall assemble at the seat of government, they shall, 
on the first day of the convening of the legislature next 
thereafter, draw numbers for long and short terms. 

Numbers corresponding with the number of senators 
elected shall be placed on separate pieces of paper, which 
shall thereafter be carefully folded so as to hide the number 
and placed in a box. 

The senators shall then, in the presence of the governor, 
secretary of state and state auditor, or any two of them, 
draw the numbers from said box. Those drawing the odd 
numbers shall serve for the term of two years; those drawing 
the even numbers shall serve for the term of four years, so 
that thereafter one-half of the senators shall be elected every 
two years, and in case of an increase of the number of Sena- 
tors, the same proceedings shall be had to determine the 
long and short terms of the senators first elected from the 
new districts. — (Convention Journal, p. 202.) 



ARTICLE III., SECTION 3 475 

SECRETARY reads section 3. 

Mr. RE ID. Mr. President, I have an amendment. 

SECRETARY reads: Strike out the figure "4" in 
section 3, line 1, and insert the figure "2". (Seconded.) 

Mr. REID. After the adoption of this substitute 
for section 2, I don't think the senator's terms should 
be extended to four years; it should be two, the same 
as the terms of the members of the house of represen- 
tatives. After the adoption of this substitute a moment 
ago, the giving of four years to the senators will prac- 
tically put the political power of this new state hi the 
hands of two counties, unless they are divided. We have 
in this body to-day about one-third of the representa- 
tives of the territory coming from Shoshone and Ada 
counties, to-wit sixteen members. Now, under the 
principle announced by the gentleman from Shoshone, 
that representation should be based upon the population 
and voting strength, at least four of those twelve sen- 
ators, — and you limit it to that number as I under- 
stand the substitute, it limits the senators to twelve, 
and therefore you will have one-third of the senators 
from two counties, and in for four years. Now if you 
apportion the representation according to population 
they will take one-third of the representatives, and you 
will have in here for two consecutive terms two large 
counties, and all the smaller counties, as joined for 
voting, must take their chance that any representation 
will be left, and of being controlled by these two larger 
counties. For instance, Kootenai, Custer, and Idaho, 
and those other counties where the Mormons have been 
disfranchised and you can only count the Gentile vote, 
they will be practically disfranchised, if these two 
counties choose to do it, after the first meeting of the 
legislature. Why? Because the power is given to the 
legislature after the first apportionment. We make the 
apportionment now, but when the legislature meets 
they may change it, and think you the majority won't 
change it to suit themselves in order to keep the power? 
There is no doubt that you will find representatives 



476 ARTICLE III., SECTION 3 

willing to keep power. And coming in under this ap- 
portionment, that is, the basis upon which the gentle- 
man announced it should be done, — if you carry that 
out, then these larger counties will come in with a 
larger representation, and the smaller counties, some 
possibly represented here, can be practically without 
representation. In other words, all the governor's ap- 
pointments will be subject to the say-so of these larger 
counties, and it may be, — I didn't hear the gentleman 
put in any proviso, that every county would have a 
representative, but it would not if we increase in 
counties. We have eighteen now, and he only proposes 
twenty- four members. Suppose we grow as we hope to 
grow, gain as much as Washington Territory, and have 
24, 34 and 50 counties; we will have one house com- 
posed of twenty-four members, and one of twelve, and 
some will go altogether unrepresented. And now they 
have stricken out "2" in section second, and put in the 
same old system we have under the organic act of the 
territory. I say we should have them all elected at 
the same time, every two years. If the people want to 
change their representatives or change any law they 
have upon the statute book, or adopt new measures, 
let them have a chance to do so every two years. 

Mr. MORGAN. I believe this is a very common 
provision in the constitutions of nearly all the states 
in the Union, that one-half of the senators should be 
elected every four years, and I believe it is almost uni- 
versally the case in the older states; they are elected 
in nearly all cases for four years. One-half of the 
number go out every two years, so that a portion of 
the body all the time may be men of experience. That 
is the only object probably in this provision, so far as 
I know. So far as the number of senators and repre- 
sentatives being limited to twelve and twenty-four, it 
is not done. The substitute which has been adopted 
makes it within the power of the legislature to change 
it the very next session, if it sees fit to do so, and to 
increase the number of senators and representatives; 



ARTICLE III., SECTION 3 477 

as the population of the counties increases in the terri- 
tory they may increase the senators and representatives 
both, and the section provides for that; it does away 
with the objection the gentleman urges: I do not think 
any county or two counties can control the politics or 
appointments of the state under this section. It does 
not seem to me it is possible for them to do so. The 
main object in making one-half of the senators elective 
every two years is, as I stated, to have experienced 
men in this body all the time. 

Mr. MAYHEW. I don't know what the gentleman 
means by experienced men. I have had a little experi- 
ence in that way in two legislatures of this territory. 
I have known portions of this territory in the legisla- 
ture, where they had an equal vote to their counties, 
absolutely deprived of more than one-half the repre- 
sentation they were entitled to. Now I say, Mr. Chair- 
man, that any legislature in the world that has the 
power they have themselves, acts the king, — any men 
that have the power, — they will if possible prevent a 
change in that representation. I don't think because 
we are forming a state government, that you are going 
to change the character of the men that come into the 
legislature. I don't believe you will change their 
political ambition to work for the different sections 
they represent and to hold political power in the way of 
representation. I observed three years ago in the 
legislature of this territory that it was within the 
power of two counties of this territory to prevent a 
correct representation in the legislature, and it was 
done. Bingham County, which had a very limited rep- 
resentation in the legislature, joined with Alturas 
county and prevented the other counties from having 
a just representation, and members of this body now 
can bear testimony that the statements I make are cor- 
rect. And even in the last legislature it was very hard 
to give every county in this territory a representation 
in the representative body. They wrangled, fought and 
abused one another to that extent that men became so 



478 ARTICLE III., SECTION 3 

disturbed in their political sentiments that they had no 
communication with one another as members of the 
legislature, trying to keep the political power in a cer- 
tain section, and for that reason I support the amend- 
ment that the senators shall be elected every two years, 
as the others are. Experienced men in the legislature! 
The experience of these past members who are to re- 
main over as senators, — their experience only goes to 
the extent by which they can maintain political power 
in their hands, and not that the people shall be well 
represented. I think the amendment offered is a good 
one. It is a strange thing to me, Mr. Chairman, that 
that bill was reported to this body, and reported in the 
manner it was, and the first thing that happened the 
chairman of that committee should desire its alteration. 
It seems to me you can see politics sticking out of this 
question so plainly and strongly that it must arouse the 
condemnation of every man in this convention. 

Mr. BEATTY. The member from Nez Perce stated 
that two strong counties would be enabled under this 
proposition to practically control the legislature. Now 
my observation has been that where one strong county 
or two strong counties undertake to control a body, 
unless they have an absolute majority, they invariably 
fail. Any two strong counties not having a majority, 
because this bill would not give them a majority, can- 
not control the legislature, unless all the members, or 
unless the members of the smaller counties concede 
that right to them. The members of the smaller coun- 
ties have the control in the aggregate, and it is utterly 
impossible that two of the larger counties can make 
such a combination as to control the legislature, unless 
by the consent of the smaller counties. 

Now the member from Shoshone has been pleased 
to make a reference to what he claims transpired three 
years since, when the counties of Bingham and Alturas 
undertook to control this legislature and prevent a new 
apportionment. I happen to know something of that 
myself, Mr. Chairman, for J had the honor to be asso- 



ARTICLE III., SECTION 3 479 

ciated with my friend from Shoshone in that legisla- 
ture. I undertake to say that the reason the apportion- 
ment was not made at that legislature was not on ac- 
count of any combination between Bingham and Alturas 
counties, but because the gentlemen from the north 
could not themselves agree upon what apportionment 
should be made. I remember very distinctly about two 
different bills being introduced, but I undertake to say 
here that it was not the fault of Bingham county nor 
of Alturas; I undertake to say those counties did not 
join together; I have no recollection of it, but I do 
remember where the difficulty occurred, and it was 
largely in the northern part of the territory. But 
whether that be so or not, if the counties of Alturas 
and Bingham attempted to join, or if in the future the 
counties of Shoshone and Ada, to which the member 
from Nez Perce referred, should attempt to join, how 
easy it is for the other counties of the territory to 
prevent injustice being done. Now I think there is 
nothing in that argument, but there is much in the 
proposition that the gentleman here are now advocating, 
in not having a senator allotted from each of the 
counties. That is to give the small counties with small 
population a power they are not entitled to, and I can 
see no special justice in it; in fact the proposition is 
so plain upon its face that they are left without argu- 
ment for it. 

As to politics appearing in this as suggested, sim- 
ply because the chairman of the committee has reported 
an amendment, there is nothing strange in that. A 
great many members upon this floor have objected to 
that bill, and the chairman of the committee under- 
stands that; he understands that the bill as he reported 
it could not pass, or will not meet the approbation of a 
large majority of the members of this convention, and 
that is why the chairman of that committee has report- 
ed this amendment. It has been suggested to him to 
my certain knowledge that amendments similar to this 
would be offered, but we allowed the chairman to pre- 



480 ARTICLE III., SECTION 3 

sent those amendments himself instead of taking it out 
of his hands. That is the only politics I know of in the 
matter, for I know as one member of this convention 
that I made myself the suggestion to the chairman 
that unless he made or offered some amendment in his 
report as here presented to us, that objections would 
be made, and the suggestion was made to him to allow 
him as chairman of that committee to offer this amend- 
ment. If there is any politics in that, it is so fine that 
I for one am unable to see it; but certainly; Mr. Chair- 
man, whether there be politics in it or not, there at 
least is justice in the amendment proposed by the 
chairman of that committee, and there is injustice in the 
bill as first reported. 

Mr. RE ID. In order to make my amendment har- 
monious, I will ask permission to add to it,— strike out 
the word "four" in line 1, as stated, and then strike out 
all after the word "provided," because if that is 
adopted all this proviso will fall to the ground and be 
useless; strike out all after the word "election." The 
balance of the section is simply a provision put in to 
allot the senators to their terms if they are elected for 
four years. 

Now in the politics alluded to by my friend from 
Shoshone, — I did not suppose he meant partisan poli- 
tics, but I can see some politics in it. You take the 
legislature constituted that way, and we want to elect 
two United States senators, — I don't care whether it 
be democratic or republican. These two counties, with 
a little support from one or two neighboring counties 
having the same interest, can do doubt come in and 
practically control the election of United States sena- 
tors, no matter whether they be democratic or repub- 
lican. But if you have a representative to every county, 
they will not only have a voice in that, but a voice in 
the confirmation, as the gentleman said, of all the ap- 
pointments. I do not believe in centralizing power in 
these counties, — give every county a chance. We 



ARTICLE III., SECTION 3 481 

haven't so much need for partisan politics as we had 
in the development of the territory, and if every county, 
— I don't care how small it is, has a voice here, and you 
can't apportion it so they will all be apportioned alike, 
but they provide for that in the house of representa- 
tives. I don't expect when you come to the house of 
representatives that a little county with 700 voters will 
get the same representation as Ada or Shoshone with 
2500 or 3000 voters; but I will feel secure if we have 
a voice in the senate. I will feel that whenever the gov- 
ernor sends in his appointments the representative we 
have there will see that they are proper men. I will 
feel that whenever we vote for United States senator 
they will take a man that will look out for the develop- 
ment of our agricultural interests as well as the open- 
ing up of our river up there. I won't feel that these 
two counties who represent two distinct interests of 
this territory will be the only ones represented, but 
throughout the territory every county will have a voice, 
and that you are going to do the fair thing, what is 
right and proper, for equal representation gives them 
all a voice in the senate. Eighteen members is large 
enough; twelve is too small; but they have given the 
larger counties the control they are entitled to on ac- 
count of population in the lower house, just as Con- 
gress is constituted. Suppose that you apply it to the 
senate; Delaware has as much representation as New 
York, Nevada as much as California, but when you 
come to the House it is not that way. The people's 
House, — they are representing us there; we like them 
are both elected by the people, but we are sure that 
these little counties frequently suffer from mere lack of 
fit representation, whereas they have large wants, they 
need to be developed, they need some one here to stand 
up for them and tell the legislature their wants and 
interests and call attention to it. The larger counties 
are sure to be heard, but, as I said, give representation 
to the smaller and weaker counties, and you will find 
our new state will develop far more rapidly than if you 



482 ARTICLE III., SECTION 3 

centralize the senatorial power in these larger counties. 

Mr. BEATTY. It seems to me that the gentleman, 
as well as myself and some of the rest who have pre- 
ceded him, have got off the question. The question we 
have before us is whether the word "four" shall be 
stricken out instead of "two." I was following my 
distinguished friend from Nez Perce, and also from 
Shoshone, in what I said. 

Mr. CLAGGETT. Mr. Chairman, I am perfectly 
willing to concede that legitimate reasons can be given; 
whether they should be of controlling character I do 
not think appears, — but there are good and cogent rea- 
sons for the motion made by the amendment offered by 
the gentleman from Nez Perce. And when that amend- 
ment was first suggested, it struck me that I would 
support it. I came to the contrary conclusion, largely 
upon the reasons given by the gentleman himself in 
support of his motion. Now I want to correct the 
statement of the figures involved, in which he states 
that two counties in this territory can control the 
senate. He bases it upon the representation each has 
here upon this floor, Ada and Shoshone, which amounts 
to sixteen. A majority of this convention is thirty- 
seven in number. If you were to take the delegation 
from Ada and Shoshone together, you will still lack 
twenty-one of having a majority. In other words it 
will take five of the counties to control the senate, in- 
stead of taking two, as stated by my friend from Nez 
Perce; he was incorrect 

Mr. REID. How many gentlemen did we admit to 
this floor on credentials; was there not 69? 

Mr. CLAGGETT. 69 ; I am taking your number. 

Mr. REID. Isn't 16 nearly about one-third of 69? 

Mr. CLAGGETT. O, no sir, no sir; it is one-third 
of 48; between 48 and 69 there is a difference of 21 
votes. My friend had better go to school and learn 
addition and subtraction. But, Mr. Chairman, going 
back to what is the question before the house; this pro- 
vision here is one that exists in almost every legisla- 



ARTICLE III., SECTION 3 483 

tive body I know anything about, in fact, all of them, 
that the senators shall be elected for double the length 
of time the members of the house are. There must be 
some reason for the uniformity with which this prac- 
tice is kept up in every state in the Union, and foreign 
countries as well as here. I think the reason lies upon 
the surface of things. It is not designed to bar any 
door, one way or the other, but it is designed to main- 
tain in the legislature the retention of a certain number 
of the members of the legislature who had participated 
in the debates of the preceding session of the legisla- 
ture, in order that information arising or growing out 
of the proceedings of the preceding legislature may be 
left in the hands of representatives upon the floor of 
the succeeding one, and by that means aid in the legis- 
lation of the two new houses of the legislature. That I 
have always understood is the reason for the senators 
holding over for one term. You go to Washington, 
you may change your administration, and there may 
be a general overhauling and turning out of the clerks 
in the departments and bureau offices, and yet there 
are men, and plenty of them, in every department in 
Washington City, who have been there under all ad- 
ministrations, until they have grown old and gray and 
incapable of labor. No administration dares turn them 
out. Within their knowledge lie reposed the secrets, 
information and knowledge of twenty to fifty years, — 
information absolutely necessary to enable the incoming 
administration to get at their hands the threads of all 
political transactions, in such shape that the incoming 
administration can go off smoothly and without trouble, 
and that is one reason why the senators hold over. 
There is reposed in them, as historians, as it were, 
things relating to the immediate past, and essential to 
be understood by the new house or the new legislature 
when it comes into existence. 

Mr. CLARK. I support the motion of my friend 
from Nez Perce, but I want to express at the same time 
my astonishment that he should make the argument he 



484 ARTICLE III., SECTION 3 

has. After the iron hand of the caucus is in action, 
why make motions, and why make speeches? This 
gentleman from Alturas, who says he sees no politics in 
this, is as innocent as that Chinese who secreted the 
possessions of Mr. William Nye. The committee on 
Legislative Department, eminent republicans, unani- 
mously agreed to report the change we had under con- 
sideration, and upon a vote, a unanimous vote, the 
members voted to change this clause. There is some 
power behind this throne, or no doubt this change would 
not have been agreed to by such a vote as this. Thus 
in a non-partisan convention has raged the zeal of 
republican enthusiasm for statehood, and the side of my 
democratic friends will go down as rapidly as the 
snows of winter go under the summer's thermometer. 

Mr. HARRIS. Mr. Chairman, I rise to the support 
of the amendment offered by the gentleman from Nez 
Perce, and I assign as one reason for supporting it the 
fact that two small counties may be combined. In 
drawing lots one may get the four years' term. That 
gives one of the small counties four year's representa- 
tion through two sessions of the legislature, and the 
other one perhaps none. By electing a senator every 
two years, they can change about from county to county, 
and that gives each one of them alternate representa- 
tion in the senate. The other way one is wholly out 
for four years. 

The CHAIR. The question is upon the adoption of 
the amendment of the gentleman from Nez Perce. 

Mr. MAXEY. We would like to hear the amend- 
ment read. 

SECRETARY reads: Strike out the figure "four" 
in section 3, line 1, and insert "two." 

Mr. REID. And also strike out all after the word 
"election" in the third line, the balance of the section 
in addition to that. The balance relates to the ar- 
rangement if elected for four years. 

Mr. SECRETARY. And then the section reads: 
The senators shall be elected for the term of two 



ARTICLE III., SECTION 4 — STRICKEN OUT 485 

years and representatives for the term of two years, 
from and after the first day of December next following 
the general election. Cries of "Question." (Rising 
vote shows 29 in the affirmative, 17 in the negative.) 

The CHAIR. The amendment is adopted. 

Mr. BEATTY. I desire now to amend it so as to 
avoid repeating. As it now reads it is; "Senators shall 
be elected for the term of two years and representatives 
for the term of two years. I desire to put it in one clause, 
and say that the members of the legislature shall be 
elected for the term of two years, or that senators and 
representatives shall be elected for the term of two 
years each. 

Mr. MORGAN. I have no objection to that, Mr. 
Chairman. 

The CHAIR. The amendment is accepted. 

Mr. REID. I now move the adoption of the section 
as amended. (Seconded and carried.) 

The CHAIR. The section is adopted. 

Section 4 — (stricken out.) 

SECRETARY reads section 4: The legislative 
assembly shall in the year 1895 and every ten years 
thereafter cause an enumeration to be made of the 
population of the state. 

Mr. HARRIS. I move that the section be stricken 
out. (Seconded.) 

Mr. MORGAN. The object of this section is simply 
this. Every ten years the government of the United 
States has a census taken of the whole country, all of 
the states. If we take a census every ten years also, it 
will give us the number of the population every five 
years; that is the object of it. 

Mr. REID. Let me ask the question, did the com- 
mittee estimate what that would cost the state; have 
you any information? 

Mr. MORGAN. No sir. It is done in almost all 
the states, I think every state in the Union. 

Mr. REID. I will state to the gentleman that we 



486 ARTICLE III., SECTION 4 

found it was going to cost from ten to twenty thousand 
dollars a year, and so reported to your committee. 

Mr. MORGAN. I have no idea what it will cost. 
The census of the United States will be taken in the 
year 1890 and every ten years thereafter; and this 
being provided for in 1895 would give us a census every 
five years. 

Mr. HARRIS. I move to have it stricken out, for 
one reason, the excessive cost of taking the census. We 
can get at the average population of each of the coun- 
ties every two years by the election returns. From that 
we can approximate the population of the county. This 
legislative apportionment is generally made on voting 
strength, and should be at least, and not on the number 
of inhabitants generally of the county; so it is unneces- 
sary. We get it every ten years without cost when the 
census is taken by the general government, and I think 
it is a needless expense, and that the section should be 
stricken out. 

The motion to strike out section 4 is put and carried. 

Section 4. 
SECRETARY reads section five. 1 (4). 



1 — Section 5. The number of representatives shall, at the next 
session following the enumeration of the inhabitants by the 
United States or this state, be fixed by law and apportioned 
among the several counties according to the population, ex- 
clusive of persons not eligible to become citizens of the United 
States. And the ratio of the representatives shall be de- 
termined by dividing the whole number of the population by 
the number of representatives; and the number of represen- 
tatives to which any county or district shall be entitled shall 
be determined by dividing the whole number of the popula- 
tion of such county or district by such representative ratio; 
and when a fraction shall result from such division greater 
than one-half of said ratio, such county or district shall be 
entitled to a member for such fraction; and in case any 
county shall not have the requisite amount of population to 
entitle such county to a member, then such county shall be 
attached to some adjoining county or counties for repre- 
sentative purposes. — (As given in the Idaho Daily Statesman 
of July 16th.) 



ARTICLE III., SECTION 4 487 

Mr. MORGAN. I offer the following substitute for 
section 5, (4) in order to make the article harmonious 
as a whole, as the convention has already adopted the 
substitute for section 2. 

SECRETARY reads: Substitute for section 5, (4). 
The members of the first legislature shall be apportioned 
to the several legislative districts of the state in pro- 
portion to the number of votes polled at the last general 
election for delegate to Congress, and thereafter to be 
apportioned as may be provided by law. 

Mr. MAYHEW. I move the adoption of the 
amendment. (Seconded.) 

Mr. REID. I would like to ask the chairman of 
the committee one question. Why did the committee 
change the phraseology from "population" to "number 
of votes"? 

Mr. MORGAN. Because it was thought it would 
not be proper to give the Mormon counties which can- 
not vote so large an amount of representation as it 
would give them if the representation was given in 
accordance with population. 

Mr. REID. Then it was not on the theory of my 
friend from Shoshone that 

Mr. MORGAN. There is an additional reason now 
for changing it. You have stricken out section 4, which 
authorized the taking of a census to ascertain the num- 
ber of the population, and there is no means now of 
making any basis for representation whatever. 

Mr. REID. I desire to offer an amendment. 

Mr. WILSON. I would suggest that the gentleman 
change the word "delegate" to "representative in Con- 
gress." 

Mr. MORGAN. The gentleman will notice that it is 
the last census that determines the apportionment for 
the first session of the legislature; after that it is to be 
regulated by law. 

Mr. REID. I make it as an amendment to the sub- 
stitute, by adding, if the substitute which was read is 



488 ARTICLE. III., SECTION 4 

adopted, and if it is not adopted I propose to add it to 
the original section. 

SECRETARY reads: Amend section 5 (4) by 
adding; "Provided that each county shall be entitled 
to one representative." 

The CHAIR. The question will be on the substi- 
tute first. 

Mr. REID. I propose to amend the substitute be- 
fore it is voted upon. 

The CHAIR. It is moved and seconded that the 
amendment to the substitute be adopted. 

Mr. REID. Now, Mr. Chairman, they started out 
as if they wanted to be sure to give each county a rep- 
resentative, yet now they want to leave it uncertain, — 
leave it to the legislature. Now I want gentlemen to 
understand how this matter is coming on. I don't know 
whether there is any politics in it or not; I don't make 
any insinuations, and I don't know; but a member, a 
gentleman of the committee, stated here that for some 
purpose there has been a decided change. My idea in 
supporting it originally was, for the reason I expressed, 
that each county should have representation. Now it is 
changed here, and each county is to be represented ac- 
cording to voting strength. It does not make any 
difference how large it is, or anything of that kind, — 
not a particle. The old principle, no taxation without 
representation, is not regarded here. It will change 
the very foundation principle of the whole thing, and 
then in addition to that my amendment says that each 
county shall be sure to have a representative. Now 
you will find that, gentlemen, in nearly every consti- 
tution, — I won't say every one, because I have not ex- 
amined them all, — but you will find that in nearly every 
constitution in this whole land, that they are represent- 
ed in the popular branch of the legislature. We have 
24 provided for, in only 18 counties, and he says that 
the legislature may increase it according as the popula- 
tion increases. Now it can be arranged for the larger 
counties, for the apportionment is to be made so the 



ARTICLE III., SECTION 4 489 

larger counties will, as they must if you apportion it 
according to population and voting strength, — so as to 
give them the senate. I say, gentlemen, give these 
smaller counties at least one representative in this 
other house. 

Mr. MAYHEW. I would like to inquire, Mr. Chair- 
man, if in these matters this amendment offered by the 
chairman of the committee on Legislative Powers was 
discussed since the sending in of the report. 

Mr. MORGAN. I will say in answer to the ques- 
tion, that a great many of the members of this conven- 
tion have come to me privately in reference to this mat- 
ter, and have insisted that the representation should be 
according to the voting strength and not according to 
population. It was very much against my own views, 
for the reason that we have a population of 2000 in our 
county that could not vote, and there is also a popula- 
tion in Bear Lake county of 2500 to almost 3000 that 
cannot vote, and only 150 who can vote, and it was be- 
cause I could not get sufficient support in the conven- 
tion to carry the measure through in the form in 
which it was first presented that I wanted to offer this 
substitute. That is the only reason. I was in favor, per- 
sonally, of the other way. 

Some remarks have been made in reference to the 
number of senators and representatives. The number 
was fixed at 12 and 24. I wish to explain to them that 
we have passed this section because it was thought it 
would not do to increase the number at the present time, 
or the people would object to the increased expense that 
the legislature would be. It was thought that the 
people of the territory would think that 12 members 
of the senate and 24 members of the house was a suffi- 
cient number. If any larger number had been proposed by 
any gentleman upon this floor I should not have opposed 
it, because my own idea was individually that the num- 
bers of the senate and house should be greater than 
12 and 24 respectively. And personally I do not now 



490 ARTICLE III., SECTION 4 

rise to oppose the amendment offered by the gentleman 
from Nez Perce. 

Mr. REID. Well, does the gentleman offer this 
amendment as coming from the committee or on his 
individual motion? 

Mr. MORGAN. On my own individual motion, sir. 

Mr. PEFLEY. It is most surprising to me to see the 
change that has occurred on the part of the gentleman 
who proposed this. And how he knows that the con- 
vention would not adopt it with this clause in there 
giving each county an equal representation, I have no 
means of knowing; perhaps he has. But I can only 
say this, so far as I am concerned, I have never been 
consulted since the committee got their report ready; 
and of course it was not necessary. For he knew that 
there was a majority that could carry this through, for 
some reason or other which I am not in the secret of, 
and of course he had the power to do so. 

Mr. MORGAN. I want to explain to the gentleman 
as a member of the committee, that I just stated I did 
not offer it as coming from the committee. I had be- 
come satisfied that the measure could not be carried 
through, as I said, in the form in which it had been in- 
troduced or passed in the committee, and that is the 
reason I offered this substitute, personally, in view of 
that fact. And further I would say that some very 
strong opposition to the section as reported came from 
the gentleman's own county, Ada. 

Mr. POE. I would ask the gentleman whether he 
had been consulted by any of the democratic members 
of this convention, requesting or stating to him that 
such a measure could not pass, whether any demo- 
cratic members 

Mr. MORGAN. I do not know that any democratic 
members said to me that the measure could not pass. I 
said it was my own conclusion, from talking with mem- 
bers on both sides of the house. 

Mr. POE. Both sides of the house; that was just 
the question I asked him, whether any democratic mem- 



ARTICLE III., SECTION 4 491 

ber of the convention had stated to him that could 
not pass, for the reason it was stated that the popula- 
tion 

The CHAIR. I think this is out of order. 

Mr. POE. whether the population should govern 

or the number of votes. He would not say that any 
democratic or republican member stated to him that 
the measure could not pass. 

The CHAIR. The gentlemen are called to order, 
and will confine themselves to the matter under dis- 
cussion. , 

Mr. HEYBURN. Mr. Chairman, I desire to call 
the attention of members to the result of this pro- 
posed amendment. We have already passed upon the 
number of members of the house of representatives, — 
24. Now you take from that number 18, in order to 
supply each county with one, and you will have six 
members to be distributed among counties that out- 
number, three, four or five times, some of the counties 
in this state. Will that be equitable and fair? If you 
do this thing, in fairness you will have to increase the 
number of representatives, because that would be so 
manifestly unfair that I doubt if any gentleman would 
support it. You take for instance, without referring 
specially to any particular county, but I will take the 
county of Bear Lake; give it a representative. Now 
you have exhausted the other six members by giving 
them to the six largest counties, and you have a county 
like Bear Lake represented in the lower branch of the 
legislature with just one-half the representation that 
a county like Shoshone or Bingham or Ada or any other 
of the larger counties has. In other words, you have a 
few hundred men represented by a representative, and 
you have a few thousand represented by two repre- 
sentatives. 

Mr. SWEET. Mr. Chairman, I think the difficulty 
here arises very largely upon the point suggested by the 
gentleman from Shoshone, Mr. Mayhew. The absolute 
fact is that 24 members of the house and 12 members 



492 ARTICLE III., SECTION 4 

of the senate does not fairly represent the various in- 
dustries and interests of this territory, and consequently 
I shall move to reconsider the motion by which it was 
adopted, and substitute 36 members for the House and 
18 for the Senate, and then the Territory can be rep- 
resented on that basis; but it cannot on the basis of 
12 and 24. 

Mr. SHOUP. If I understand this substitute in re- 
gard to the basis on which apportionment is made, it 
only applies to the first legislature; then the legislature 
may change it in any way reasonable, either by popu- 
lation, or leave it the way it is. Now I cannot con- 
ceive of any other means by which we can arrive at an 
apportionment for the first legislature except by voters. 
We have no census and will have none. 

Mr. MAYHEW. That would cut no figure, Mr. 
Chairman. We know what the vote was last session, — 
if this constitution should be adopted at all. We know 
what the vote was last fall in each individual county, 
and we can regulate that now by the vote and the re- 
turn of the vote in the Secretary's office, and increased 
representation in the legislature can be reckoned on 
that basis, as has been pointed out, without a census 
being taken. 

Mr. CLAGGETT. I call for the . reading of the 
substitute. 

SECRETARY reads: Section 5. (4) The mem- 
bers of the first legislature shall be apportioned to the 
several legislative districts of the state in proportion to 
the number of votes polled at the last general election 
for delegate to Congress, and thereafter to be appor- 
tioned as may be provided by law. 

Mr. REID. I ask for the reading of the amendment. 

SECRETARY reads: Provided, each county shall 
be entitled to one representative. 

The CHAIR. The question is upon the adoption of 
the amendment to the substitute. 

Mr. SWEET. It is perfectly evident from the re- 
marks made by the gentleman from Shoshone, (Mr. 



ARTICLE III., SECTION 4 493 

Heyburn) that giving to each county one representative 
would not be a fair representation here for the larger 
counties. It is also equally clear, from the statement 
made by Mr. Reid of Nez Perce, that it would deprive 
the smaller counties of any representation, or anything 
like a fair representation if we only have 24 members 
of the House. I therefore hope the amendment will be 
voted down and that we may yet reconsider the other 
and have a larger representation in the House. 

Mr. REID. I shall join my friend from Latah 
heartily when that question comes up in the house, to 
return to the old basis, in order that we can have a 
representation in the counties as he states; but for the 
present, — we can move to reconsider now, but when 
we get into the house we can move it just as well. If 
the gentleman moves a reconsideration now we will 
proceed to go back to that section and vote more, but 
I think while we have 18 now there will be six, — if 
you give each one of these counties one apiece, — there 
will be six left over for these larger counties; but you 
will be sure to have some representation. I hope you 
will vote for the amendment. 

The chair puts the question on the adoption of the 
amendment. (Vote.) 

The CHAIR. The chair is in doubt. (Rising vote 
shows 32 ayes; nays not given.) The amendment is 
adopted. The question now recurs on the substitute 
as amended. (Vote.) I